author: JOHNSTONE, Justice.

text:
    STATE of Alabama v. Hubert NORRIS.
    1020953.
    Supreme Court of Alabama.
    Oct. 3, 2003.

      William H. Pryor, Jr., atty. gen., Nathan A. Forrester, deputy atty. gen., and Bill-ington M. Garrett and Alice M. Maples, asst, attys. gen., for appellant.
    Ted Taylor and Rhonda P. Chambers of Taylor & Taylor, Birmingham, for appel-lee.
   JOHNSTONE, Justice.

The plaintiff State of Alabama (“the State”) appeals a summary judgment for the defendant Hubert Norris (“Norris”) in this quo warranto action filed by the State to remove Norris from the office of sheriff in Fayette County (“sheriff’). The sole issue presented by this appeal is whether, after a sheriff has been convicted of a felony and removed from office for such conviction by operation of § 36-9-2, Ala.Code 1975, and thereafter has been pardoned with restoration of “all civil and political rights which were forfeited as a result of the aforesaid conviction(s),” the same Code section bars him from ever again holding the office of sheriff even pursuant to a new election, sought and won after the pardon, to a new term or part thereof. Section 36-9-2 reads:

“When any person holding any office or place under the authority of this state is convicted by any court of the United States, of this state or of any other state of a felony, his office or place shall be vacated from the time of the conviction. If the judgment is reversed, new trial granted or judgment notwithstanding the verdict is rendered, he shall be restored to office; but, if pardoned, he shall not be restored to office.”

We hold that this section does not bar the subsequent holding of the office pursuant to the subsequent election. Accordingly, we affirm the summary judgment.

The order of the trial court granting the summary judgment explains the procedural posture of the case, the facts, and the rationale of the trial court:

“THIS case is heard on Complaint for Writ Quo Warranto filed by the Attorney General on behalf of the State of Alabama and on Motion to Dismiss and Amended Motion to Dismiss the same. Although the hearing was held pursuant to Rule 12(b)(6), Alabama Rules of Civil Procedure, the parties agree the facts are without dispute and are as stated herein. Therefore, pursuant to Rule 12, Ala. R. Civ. P., this Motion to Dismiss is treated as one for Summary Judgment as provided in Rule 56.
“Hubert Norris held the office of Sheriff of Fayette County for consecutive terms beginning in 1974 until his resignation from that office pursuant to plea agreement in federal court in 1989. As part of that plea agreement, Hubert Norris pleaded guilty to multiple federal felonies and was sentenced to thirty-seven months in prison and a twenty five thousand dollar fine. Thereafter, on March 14, 1994, Hubert Norris received a pardon from the Alabama State Board of Pardons and Paroles restoring ‘all civil and political rights’ which were forfeited as a result of his federal conviction. After his pardon Mr. Norris was elected to the office of County Commissioner of Fayette County and served in that elected capacity for two years without objection to his eligibility to office. Thereafter, he qualified for, ran, and received the Democratic nomination for Sheriff for Fayette County in the Spring of 2002. In the general election of November 5, 2002, he was elected Sheriff of Fayette County and was sworn in on January 20, 2003. This action was filed the next day.
“The State contends Norris unlawfully holds the office of Sheriff of Fayette County by reason of § 36-9-2, Ala.Code 1975, which states ‘when any person holding any office or place under the authority of this state is convicted by any court of the United States, of this state or of any other state of a felony, his office or place shall be vacated from the time of the conviction. If the judgment is reversed, new trial granted or judgment notwithstanding the verdict is rendered, he shall be restored to office; but, if pardoned, he shall not be restored to office.’
“That code section and the effect of his pardon determine the legality of Hubert Norris’s incumbency. Section 36-9-2 deals with public office. Chapter 9 of the code containing it is styled ‘Vacation of Office; Filling of-Vacancies’ and it is designed to avoid, by operation of law, the delay of impeachment proceedings when a public official is convicted of a felony. So also, it provides for restoration by operation of law to offices vacated under certain circumstances, to-wit, reversal, new trial, or JNOV.
“ ‘Office’ within the meaning of § 36-9-2, means the specific office and term vacated, along with the benefits thereof. To hold otherwise, as the State urges herein, would require a construction of ‘restored to office’ as used in the last sentence of the code section so that its use in the last clause of the sentence has a different meaning from its use in the first clause of that sentence. ‘Restored’ in the first clause of the sentence, the State agrees, means put back in office by operation of law, just as the office was vacated. The State here urges ‘restored’ in the last clause means appointed, elected, or otherwise attaining office by any means. Furthér, ‘office’ in the first clause must mean the specific office for the specific term. To hold otherwise would create the result that an office holder, convicted in the last term year of his term, his office vacated thereby, and whose conviction was reversed three years later would be restored to his office. His duly elected successor, although in a different term, would be deposed from, office and the ‘restoration’ arguably would be for life since no term was specified. That construction is not only contrary to general rules of statutory construction, but it is contrary to common sense. Hubert Norris was ineligible for appointment as supernumerary sheriff because such appointment grew out of and was .a benefit of the office and term vacated by his conviction in 1989. Norris v. Humber, 674 So.2d 77 (Ala.1995).
“There is no need to analyze the nature of supernumerary office except to note that it is both an ‘office,' Hendrix v. Hunt, 607 So.2d 1254 (Ala.1992), and a benefit of office, Norris, supra. It has no term certain and its loss, or the loss of the underlying office from which it emanates, pursuant to § 36-9-2 prevents its restoration by pardon pursuant to § 36-9-2. In writing Norris, supra, Justice Maddox analyzed the nature of the office of supernumerary sheriff and the effect of § 36-9-2 on it. Not only as an institutional presumption, this court knows judicially Justice Maddox was well mindful of [State ex rel.] Sokira v. Burr, 580 So.2d 1340 (Ala.1991), which he also authored and which analyzes the effect of pardon on the person and the restoration of his eligibility to hold office. Inasmuch as Norris does not refer to nor distinguish Sokira, the implication is they refer to entirely different concepts.
“In this case, Hubert Norris does not claim the office of Sheriff of Fayette .County by virtue of his pardon. He claims it by virtue of his election. He is not claiming restoration of a term of office vacated by his conviction as was the case in Hendrix, supra, nor a benefit of an office vacated by virtue of § 36-9-2, as [was the case] in his own earlier application to b.e appointed supernumerary sheriff [and in] Hogan v. Bronner, 491 So.2d 226 (Ala.1986). The question is simply one of eligibility to hold public office. Sokira, supra, and the opinion of the Attorney General, Ala. Op. Atty. Gen. No.2001-276 answer that question. A pardon, as is the case here, which restores civil and political rights does not restore an office, but it does restore eligibility for office. That Hubert Norris has been elected to and held office as County Commissioner after his pardon, without intervention by the State, reinforces the holding here that Hubert Norris, by virtue of his pardon, is eligible to hold public office. That the office and term of Hubert Norris which was vacated by his conviction of 1989 and § 36-9-2 had expired and the fact that no benefits of that office were allowed to be restored to him pursuant to Norris, supra, moots and renders inapposite the application of § 36-9-2 to these facts.
“The people of Fayette County, by election of 2002, determined who was to be the new Sheriff of Fayette County for a term beginning January 20, 2003. Hubert Norris is eligible to be elected to and hold that office and he was elected to it.
“Therefore, on the briefs, arguments, and stipulated facts and pursuant to Rules 12 and -56, Ala. R. Civ. P., judgment is due to be and is hereby rendered in favor of Defendant Hubert Norris. Plaintiffs Complaint for Writ of Quo Warranto is denied.”

Norris’s earlier case, Norris v. Humber, 674 So.2d 77 (Ala.1995), is distinguishable from the instant case. In Humber this Court decided that § 36-9-2 barred Norris’s appointment to the office of supernumerary sheriff subsequent to his pardon because the supernumerary office depended on the same incumbency as sheriff that Norris had forfeited with his felony conviction. Norris’s current office of sheriff depends only on his new election subsequent to his pardon and not in any way upon the prior incumbency he forfeited with his felony conviction.

Section 36-9-2 addresses the term of office the official is serving when he is convicted: Humber and Hendrix v. Hunt, 607 So.2d 1254 (Ala.1992), stand for the proposition that the Code section also bars later supernumerary status based on the forfeited office. Norris’s pardon, however, restored his “civil and political right[ ]” to seek election anew and to hold office as sheriff pursuant to such election. State ex rel. Sokira v. Burr, 580 So.2d 1340 (Ala.1991) (main opinion and Justice Houston’s specially concurring opinion). Neither § 36-9-2 nor any binding precedent bars Norris’s holding the office he won by election after he was pardoned. Therefore, the summary judgment is affirmed.

AFFIRMED.

HOUSTON, SEE, LYONS, BROWN, HARWOOD, and WOODALL, JJ., concur.

STUART, J., dissents.


source: Caselaw Access Project

author: PITTMAN, Judge. MURDOCK, Judge,

license: Public Domain

text:
    BRUNO’s, INC., d/b/a Food World No. 62 v. Debra KILLINGSWORTH.
    2010281.
    Court of Civil Appeals of Alabama.
    Oct. 4, 2002.
    Rehearing Denied Nov. 22, 2002.

      George M. Zoghby and Benjamin C. Heinz of Clark, Scott & Sullivan, P.C., Mobile, for appellant.
    Allen G. Woodard of Woodard, Patel & Sledge, Andalusia, for appellee.
   PITTMAN, Judge.

Debra Killingsworth (“the employee”) sued Bruno’s, Inc., d/b/a Food World No. 62 (“the employer”) seeking workers’ compensation benefits, alleging that she was injured in the line and scope of her employment and that as a result of her injuries she suffered a permanent disability. Following the presentation of ore tenus evidence, the trial court found that the employee suffered a permanent total disability. The employer filed a post-judgment motion, which was denied by operation of law.

The employer appeals. It argues that the trial court erred (1) by finding that the employee’s neck injury was work-related and by awarding the employee benefits for that injury; (2) by finding that the employee suffered a permanent total disability; and (3) in its calculation of the attorney fees due the employee’s attorney.

This court will not reverse the trial court’s judgment in a workers’ compensation case based on factual findings if those findings are supported by “substantial evidence.” Section 25-5-81(e)(2), Ala. Code 1975. Substantial evidence is “ ‘evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved.’ ” Ex parte Trinity Indus., Inc., 680 So.2d 262, 268 (Ala.1996), quoting West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989). The trial court’s legal conclusions, however, are afforded no presumption of correctness, and this court reviews such findings de novo. Ex parte Cash, 624 So.2d 576 (Ala.1993).

The employee worked as a produce manager for the employer. Her job duties included unloading produce-delivery trucks, stocking produce, and moving pallets of produce. She testified that as part of her duties she would have to lift up to 25 pounds. She also testified that her job duties required standing almost all the time and that she would sit only for breaks and lunch.

The employee testified that she was injured while she was moving some shopping carts in the parking lot. She said that she felt her back “pull.” As a result of the injury, Dr. Henry Barnard, a neurosurgeon, performed back surgery on the employee and then referred her to Dr. Patrick Ryan, another neurosurgeon. Dr. Ryan treated her for disk problems in her neck as well as her back. Dr. Ryan and Dr. Timothy Holt performed a second back surgery on the employee several months after Dr. Barnard’s surgery.

I.Was the Neck Injury Work-Related?

We first address whether the employee’s neck injury arose in the line and scope of her employment. The employer argues that the trial court’s finding that the employee’s neck injury was work-related is not supported by substantial evidence. However, Dr. Ryan testified that the employee’s neck injury was related to the lower-back injury she sustained while pushing the shopping carts. Therefore, we conclude that this testimony constitutes substantial evidence supporting the trial court’s finding that the neck injury was work-related.

II.Is the Finding of Permanent Total Disability Supported by Substantial Evidence?

We next address whether the trial court’s finding that the employee was permanently and totally disabled is supported by substantial evidence. Jim Cowart, the employee’s vocational rehabilitation expert witness, testified that the employee has a 100% loss of earning capacity. The employee has a high school degree, has no further education or training, and has a work history in the sewing and grocery industries. Dr. Holt testified that the employee would have difficulty in maintaining employment for which she is qualified because of the three back surgeries (two of which are related to the work-related accident) she has had in a five-year period. Therefore, we conclude that the trial court’s finding of permanent total disability is supported by substantial evidence.

III.Calculation of Attorney Fees

We lastly address whether the trial court correctly calculated the attorney fees due the employee’s attorney. The trial court found that the weekly benefit is $278.92; that amount is offset by $90.38 per week pursuant to § 25-5-57(e)(l), Ala. Code 1975, because the employer has a disability plan that pays that amount per week in lieu of workers’ compensation benefits. Section 25-5-57(c)(l), Ala.Code 1975, provides:

“The employer may reduce or accept an assignment from an employee of the amount of benefits paid pursuant to a disability plan, retirement plan, or other plan providing for sick pay by the amount of compensation paid, if and only if the employer provided the benefits or paid for the plan or plans providing the benefits deducted.”

It is undisputed that the $90.38 per week benefits is from a plan defined in § 25-5-57(c)(1).

The trial court calculated the attorney fees for the unaccrued benefits without deducting the $90.38 from the $278.92 amount. The employer argues that the $90.38 setoff should be excluded for purposes of calculating the attorney fees.

Section 25-5-90(a), Ala.Code 1975, states that attorney fees “shall not exceed 15 percent of the compensation awarded or paid.” The employer argues that $278.92 less the $90.38 setoff is the “compensation awarded or paid,” while the employee contends that $278.92 without deducting the setoff is the “compensation awarded or paid.” This issue has not been decided before in Alabama.

The employee in her brief cites Sanders v. Dunlop Tire Corp., 706 So.2d 716 (Ala.Civ.App.1996), aff'd in part, rev’d in part, 706 So.2d 729 (Ala.1997). Sanders is the only case decided in Alabama that mentions the calculation of attorney fees where a setoff pursuant to § 25-5-57(c)(l) is implicated. The trial court in Sanders calculated the attorney fees without deducting the setoff from the benefits; however, the calculation of the attorney fees was not an issue on appeal in this court or in the supreme court.

The employer’s brief cites Bynum v. City of Huntsville, 779 So.2d 243 (Ala.Civ.App.1999), which holds that the attorney fees are calculated after deducting the credit due the employer pursuant to § 25-5-ll(e) for the recovery from a third-party tortfeasor. The employer argues that this holding provides guidance for the issue presented in this case and the policy considerations of deducting a credit before calculating the attorney fees support a similar calculation method in applying the setoff of § 25-5-57(c)(l).

Our research has disclosed one case addressing a similar issue. In Ford Motor Co. v. Stewart, 762 S.W.2d 817 (Ky.App.1988), the employee’s workers’ compensation award was totally offset by a disability plan provided by the employer. The Court of Appeals of Kentucky held that the attorney was entitled to attorney fees. Stewart, 762 S.W.2d at 819. The court reasoned:

“If a credit against workers’ compensation for the payment of other benefits could be applied so as to completely extinguish any workers’ compensation liability including the payment of an attorney’s fee, the result would be that in cases such as we have here, the injured employee would be unable to obtain legal assistance in pursuing his workers’ compensation claim and would in all probability be forced to forego the claim.”

Id. We adopt the reasoning of the Court of Appeals of Kentucky and conclude that the trial court properly calculated the attorney fees in this case without first deducting the amount of the disability plan provided by the employer.

We are not persuaded by the employer’s reliance on interpretations of § 25-5-ll(e). The Bynum court stated that its calculation method prevents the attorney from “receiv[ing] a double fee for the moneys he has secured for his client.” 779 So.2d at 247. In this case, the attorney is not receiving a “double recovery” of fees by calculating the attorney fees before deducting the employer-provided disability-plan setoff. In a third-party tortfeasor action pursuant to § 25-5-11 liability for some or all of the workers’ compensation benefits is being shifted from the employer to a third party. In this case, the employer is still liable for the entire amount of benefits owed the employee. It so happens that part of the benefit amount is paid by an employer-provided disability plan; however, the amount of the benefits is dictated by the Workers’ Compensation Act. In fact, § 25-5-57(c)(l) specifically requires that the disability plan be paid by the employer in order for a setoff to be allowed.

Furthermore, calculating the attorney fees before deducting the employer-provided disability-plan amount does not increase the employer’s liability. Section 25-5-90(a) limits attorney fees to “15 percent of the compensation awarded or paid.” Our holding merely interprets the phrase “compensation awarded or paid” to include benefits paid pursuant to an employer-provided disability plan as well as benefits paid pursuant to a workers’ compensation insurance plan. The facts of the Stewart case cited above provide a compelling reason for our holding — an employer may provide a disability plan that satisfies the entire amount of workers’ compensation benefits owed to the employee. Under those facts, if the amount of the employer-provided disability plan were deducted before calculation of the attorney fees, then an attorney who successfully prosecuted a workers’ compensation case could receive no payment for his or her work in the case. Awarding no attorney fees to an attorney who successfully prosecutes a workers’ compensation case and secures a recovery for the employee would be an unreasonable interpretation of § 25-5-90(a). We will not interpret § 25-5-90(a) in such a manner as to allow an award of no attorney fees to an attorney who successfully prosecutes a workers’ compensation claim.

The trial court’s judgment specifically finds that the amount of weekly compensation to be awarded to the employee is $278.92. Therefore, applying our reasoning above, we conclude that the $278.92 weekly amount is the “compensation awarded or paid,” and that the attorney fees are calculated before the deduction of the disability-plan amount.

Therefore, the trial court’s judgment is affirmed.

AFFIRMED.

THOMPSON, J., concurs.

YATES, P.J., concurs in the result.

MURDOCK, J., concurs in part and dissents in part.

MURDOCK, Judge,

concurring in part and dissenting in part.

I agree with the contention of the employer in this case that the trial court miscalculated the attorney fees. I therefore dissent with respect to that issue. I concur in the main opinion insofar as it relates to the other issues raised.

Section 25 — 5—90(a), Ala.Code 1975, states, in part, that attorney fees shall not exceed “15 percent of the compensation awarded or paid.” An understanding of the meaning of the terms “awarded” and “paid” requires that those terms be read in pari materia with the other provisions of § 25-5-90(a). That subsection states, in part:

“[T]he judge, upon the hearing of the complaint' for compensation, either by law or by settlement, shall fix the fee of the attorney for the plaintiff for his or her legal services and the manner of its payment, but the fee shall not exceed 15 percent of the compensation awarded or paid.”

(Emphasis added.) I read the terms “awarded” and “paid” as terms that correspond, respectively, to the references earlier in the same sentence to a hearing of the complaint for compensation either “by law” or “by settlement.” See generally, e.g., IMED Corp. v. Systems Eng’g Assocs. Corp., 602 So.2d 344, 346 (Ala.1992) (statutory terms are to be construed according to their plain meaning); Darks Dairy, Inc. v. Alabama Dairy Comm’n, 367 So.2d 1378, 1380-81 (Ala.1979) (phrases in the same statute are to be read in pari mate-ria with one another, not in isolation); Alabama Farm Bureau Mut. Cas. Ins. Co. v. City of Hartselle, 460 So.2d 1219, 1225 (Ala.1984) (courts must look to entire statutory scheme in construing statute).

Under Alabama’s Workers’ Compensation Act, the employee in this case was not entitled to compensation benefits that would duplicate the $90.38 she received pursuant to the disability plan funded by the employer for his benefit. See § 25-5-57(c)(1), Ala.Code 1975. Thus, all the employee ever could obtain in this case, “either by law or by settlement,” was an award of the balance of the $278.92 weekly benefit owed by the employer under the Act, or $188.54. It is this latter amount, $188.54, that in this case is the “compensation awarded or paid” — or, more specifically in light of the fact that these moneys were obtained by way of a court judgment rendered in an action at “law,” and not by way of a settlement, the $188.54 is the “compensation awarded.” The language of § 25-5-90(a) therefore plainly requires that the attorney fee in this case not exceed 15 percent of this amount.

Unlike Judge Pittman, I see the principles upon which this court based its attorney-fee holding in Bynum v. City of Huntsville, 779 So.2d 243 (Ala.Civ.App.1999), as principles that fully undergird the employer’s position in the present case. In Bynum, Judge Crawley, writing for the court, explained:

“The worker’s award of compensation had to be reduced by the amount of his third-party recovery under § 25-5-11(a), [Ala.Code 1975,] and the trial court awarded him only $2,973.92 in compensation after the credit. Accordingly, the attorney fee for the compensation action must also be limited because the fee in a workers’ compensation action ‘shall not exceed 15% of the compensation awarded or paid.’ Ala.Code 1975, § 25-5-90 (emphasis added). If the attorney fee is not also limited, the attorney would receive a double fee for the moneys he has secured for his client.”

779 So.2d at 247. In like manner, in the present case “[t]he worker’s award of compensation had to be reduced by the amount of his [$90.38 recovery from the employer-funded disability plan],” and, therefore, “the trial court awarded him only [$188.54 per week in benefits] after the credit. Accordingly, the attorney fee for the compensation action must also be limited because the fee in a workers’ compensation action ‘shall not exceed 15% of the compensation awarded or paid.’ Ala.Code 1975, § 25-5-90 (emphasis added).” 779 So.2d at 247.

The holding of this court in Bynum squares with the purpose of § 25-5-90, which is apparent on the face of that statute, namely, to compensate the employee’s attorney “for his or her legal services” in recovering benefits under the Act that would not have been received by the employee if not for the workers’ compensation action. Under the statute, such fees are to be based upon the compensation benefits the attorney secures for his client, just as contingency fees are generally.

Although the purpose of the statute is to provide fair compensation to an attorney for the moneys he has secured for his client, the approach adopted in the main opinion could result in an attorney fee several times more than the “double fee” about which this court was concerned in Bynum. 779 So.2d at 247. Take, for example, a case in which an employer has funded a disability plan that, before the employee even hires an attorney, pays the employee an amount that is equal to 90 percent of the compensation benefits due the employee under the Workers’ Compensation Act. Applying the approach adopted in the main opinion, an attorney hired by the employee to pursue a compensation action for the balance owed by the employer (after the credit allowed by § 25-5-57(c)(1)) could seek a fee of 15 percent of the entire recovery, i.e., the combined recovery from both the disability plan and the compensation action. This would be a fee 10 times the amount of a fee based on 15 percent of the amount actually recovered for the employee by the attorney.

Further, there would be only two possible sources for the funds needed to pay such a fee: If the entire 15 percent fee were to be taken from funds that would otherwise be paid to the employee, there would be a disincentive for the employee to sue a recalcitrant employer for the final 10 percent of his compensation benefits. A successful action could lead to an attorney fee that would not only absorb all of the moneys recovered thereby, but would also eat into the amount already recovered by the employee before he ever hired an attorney. The other alternative would be to provide for a payment by the employer of more than 100 percent of its compensation liability in order to fund all or part of the attorney-fee award. From my reading of the Workers’ Compensation Act, I do not find that the Legislature has provided for, or intended, either result.

This case is no different in principle than one in which an employer voluntarily pays all or most of the compensation benefits due its injured employee. Before the lawsuit was commenced in Ex parte Shaw, 210 Ala. 185, 97 So. 694 (1923), the employer had already paid all but $13 of the compensation due; the employer paid the remaining $13 when it filed its answer. The employee argued on appeal to the Supreme Court that the trial court erred in failing to award an attorney fee. 210 Ala. at 187, 97 So. at 695. The Supreme Court rejected this argument, explaining that an attorney fee “must come out of the compensation awarded” and that the proceeding at issue was not commenced until the plaintiff had already accepted from the defendant $637 of the total of $650 in compensation benefits due to the employee. Id. As the Supreme Court reasoned, because the proceeding “produced nothing” (although the court did enter a judgment for the plaintiff for $13), the trial court’s failure to award an attorney’s fee was not error. 210 Ala. at 188, 97 So. at 695.

Moreover, in Ex parte St. Regis Corp., 535 So.2d 160 (Ala.1988), our Supreme Court addressed a situation in which the employer voluntarily paid the employee the maximum benefit available under the Workmen’s Compensation Act, before the initiation of the employee’s lawsuit. The Supreme Court held “that the employee’s lawyer is not entitled to any fee for the benefits received by the employee before the date of trial.” 535 So.2d at 162. Thus, as one commentator has noted: “A claimant’s attorney, no matter how industrious, who does not produce any compensation for the client may not receive a fee.” 2 Terry A. Moore, Alabama Workers’ Compensation § 29:6 (1998). Likewise, I cannot conclude that the Legislature intended that an attorney may receive up to 15 percent of moneys not produced for an injured employee by the attorney.

This court and our Supreme Court have repeatedly held that the Workers’ Compensation Act is to be construed so as to further the beneficent purposes thereof. See, e.g., Ex parte Beaver Valley Corp., 477 So.2d 408 (Ala.1985). That purpose is to benefit the injured, employee, not her attorney. The Legislature has tailored the compensation benefits available under the Act to accord its view of the support needed by a claimant during disability. There is little if anything to indicate that the Legislature included in the benefits available under the Act much in the way of padding to take care of legal and other expenses incurred in obtaining awards under the Act. To award to an attorney a percentage of moneys he played no role in obtaining for an employee would be at odds with the beneficent purpose of the Act.

      . In a case such as that postulated, it might be argued that this court could hold that a fee award of 15 percent of the entire recovery received by the employee was an abuse of discretion. I do not think the language of § 25-5-90 contemplates a dependence upon an abuse-of-discretion "safety net,” however.
      I also note that the approach adopted in the main opinion would be applicable to a case involving not a disability plan payment under § 25-5-57(c)(l), but simply an employer who pays most — e.g., 90 percent — of its injured employee's compensation benefits, but fails or refuses to pay the balance. The employer would be insulated from liability to the extent that the employee is discouraged by the prospect of a disproportionately high fee award from bringing a workers’ compensation action to enforce his rights for the balance due. See discussion in text, infra. See generally Wal-Mart Stores, Inc. v. Kennedy, 799 So.2d 188 (Ala.Civ.App.2001) (rejecting application of workers' compensation penalty statute to underpaid benefits).


author: SEE, Justice.

text:
    Ex parte BRUNO’s, INC., d/b/a/ Food World No. 62. (In re Bruno’s, Inc., d/b/a/ Food World No. 62 v. Debra Killingsworth).
    1020404.
    Supreme Court of Alabama.
    Oct. 24, 2003.
    George M. Zoghby and Benjamin C. Heinz of Clark, Scott & Sullivan, P.C., Mobile, for petitioner.
    Allen G. Woodard of Woodard, Patel & Sledge, Andalusia, for respondent.
    Terry A. Moore of Vickers, Riis, Murray & Curran, L.L.C., Mobile, for amicus curiae Fort James Operating Company, in support of the petitioner.
    J. Thomas Burgess and Scott W. Gosnell of Burgess & Hale, L.L.C., Birmingham, for amici curiae brief filed on behalf of “almost six hundred Alabama municipalities, municipal agents, and quasi-governmental agencies which contribute to a tax-funded workers’ compensation plan,” in support of the petitioner.
   SEE, Justice.

The writ of certiorari is quashed as improvidently granted. See our previous decision in Ex parte Fort James Operating Co., 871 So.2d 51 (Ala.2003).

WRIT QUASHED AS IMPROVIDENTLY GRANTED.

HOUSTON, LYONS, BROWN, JOHNSTONE, HARWOOD, WOODALL, and STUART, JJ., concur.


author: MURDOCK, Judge.

text:
    BENDER SHIPBUILDING & REPAIR CO., INC. v. Faron WALLEY.
    2000802.
    Court of Civil Appeals of Alabama.
    Dec. 30, 2002.

      Douglas L. Brown and Chris B. Estes of Armbrecht Jackson, LLP, Mobile, for appellant.
    C.S. Chiepalich, Mobile; and John R. Spencer, Mobile, for appellee.
   MURDOCK, Judge.

In December 1996, Faron Walley injured his back in the course of his employment as a shipfitter for Bender Shipbuilding & Repair Co., Inc. (“Bender”). Walley filed a complaint against Bender, alleging, among other things, that Bender had made fraudulent representations to him following his injury. Walley alleged that Bender had established a policy of providing light-duty work to certain injured employees, namely, employees entitled to medical or compensation benefits from Bender pursuant to the Longshoremen and Harbor Workers’ Compensation Act, 33 U.S.C. § 901 et seq. (1986) (“LHWCA”). More specifically, under Bender’s policy, employees suffering from a temporary partial disability who were incapable of returning to their regular work with Bender but who were capable for performing light-duty work were offered such light-duty work if it was available. Walley alleged, however, that, in his case, Bender falsely represented to him that no light-duty work was available and that, as a result of this alleged misrepresentation, Walley suffered monetary losses and mental anguish and was therefore entitled to compensatory and punitive damages.

Walley’s claim was submitted to the jury as an intentional-fraud claim. The jury returned a verdict in favor of Walley and against Bender and awarded $40,000 in compensatory damages. The Mobile Circuit Court entered a judgment based on the jury’s verdict.

Bender appeals, arguing that the trial court erred by denying its pretrial motion for a summary judgment and by denying motions it filed during and after trial for a judgment as a matter of law. Bender contends that Walley’s claim for intentional fraud was “barred, precluded, and preempted” by 33 U.S.C. § 905(a), the exclusivity provision of the LHWCA, and that, although some courts have recognized an intentional-tort exception to the exclusivity provision if the employer specifically intended to injure the employee, Walley did not introduce sufficient evidence tending to show that Bender specifically intended to injure him.

I. Facts and Procedural History

In 1990, Walley injured his upper back while he was working at Bender’s shipyard as a shipfitter for a company known as T.J. Adams, a subcontractor of Bender. For the next two years, Walley was unable to work because of his injury. During this time, T.J. Adams, through its workers’ compensation insurance carrier, Liberty Mutual, paid for Walley’s medical treatment and also paid Walley temporary disability compensation pursuant to the LHWCA. Dr. James West, Walley’s treating physician, eventually assigned him a 5% permanent impairment rating and released him for full-duty work with no restrictions in 1992. After his release, Walley worked for the next three years as a shipfitter, welder, and fabricator for two companies other than T.J. Adams and Bender. Walley was able to perform the same type of work he had performed before his 1990 back injury. During the three-year period between 1992 and 1995, Walley had no further injury to his back.

In 1995, Walley was again employed by a subcontractor to work at Bender’s shipyard. After approximately three months, however, Bender hired Walley to work directly for Bender. At that time, Walley was examined by Bender’s physician and was determined to be physically and mentally fit for work as a shipfitter.

In November 1996, Walley complained to his foreman at Bender that he was experiencing work-related soreness in his upper back and shoulder. Walley was examined by Dr. West and was prescribed some pain medication; he immediately returned to work. He worked for the next few weeks without incident.

On December 9, 1996, Walley injured his back while lifting a mooring hook on a ship at Bender’s shipyard. Walley informed his foreman of the injury and finished his shift despite the injury. The next morning, Walley’s back pain had worsened and he contacted his foreman, who told him to contact Vicki Wagner, an employee in Bender’s safety department. When Wagner asked Walley whether his injury was related to his 1990 upper-back injury, Walley stated that it might be, but that his entire back was hurting. Conflicting evidence was introduced at trial as to whether Walley’s December 1996 injury was a recurrence of his 1990 injury, as opposed to an aggravation of his 1990 injury or a new injury. More importantly for purposes of Walley’s intentional-fraud claim, there was conflicting evidence as to whether Bender understood and believed Walley’s December 1996 injury to be a recurrence of his 1990 injury, rather than an aggravation of that injury or a new injury.

Wagner made Walley an appointment with Dr. West, who examined Walley on December 10, 1996, and informed him that he should not return to work at that time. Dr. West examined Walley on four other occasions during the next month and, after each examination, he told Walley that he should not return to work at that time. Although a December 18, 1996, entry by Dr. West on Walley’s medical chart contains a statement that “[t]he patient states that this is related to his old injury and not [a] new injury,” Dr. West’s subsequent January 22, 1997, notes reflect his opinion that “this is an exacerbation of [Walley’s] previous injury.”

On January 22, 1997, Dr. West again examined Walley and released him to return to work with a light-duty restriction. Walley returned to Bender’s shipyard and provided Wagner with his light-duty work release. However, Walley testified that Wagner and Jerry Davis, a safety and risk manager for Bender, discussed the release and told him that Bender had no light-duty work available.

We note that Bender was self-insured under the LHWCA and that its light-duty work policy for partially disabled employees was in addition to its obligations with respect to compensation and medical benefits under the LHWCA. Under the light-duty work policy, Bender paid an injured employee the full amount of his or her normal weekly wage when the employee engaged in light-duty work. Employees receiving only temporary disability benefits under the LHWCA received payments equal to only a portion of their normal weekly wage. See 33 U.S.C. § 908. Davis testified that one of the reasons Bender established its light-duty work policy was that it knew that employees could become fearful, anxious, and depressed when they could not return to work after an on-the-job injury and that the policy benefited both Bender and its injured employees.

Although T.J. Adams, through Liberty Mutual, initially paid for Walley’s medical expenses resulting from his December 1996 injury, T.J. Adams refused to pay Walley’s temporary disability benefits and eventually stopped paying his medical expenses. In March 1997, Walley retained an attorney and filed a complaint against Bender with the United States Department of Labor. Pursuant to its rights under the LHWCA, Bender initially contested Walley’s claim. However, after a June 1997 meeting between the Department of Labor, Bender, and Walley, Bender accepted the Department of Labor’s finding that Bender was responsible for Walley’s medical expenses and compensation benefits under the LHWCA. Bender began paying Walley’s medical expenses and, within a few weeks, also began paying Walley temporary disability benefits. Bender thereupon also offered Walley light-duty work in accordance with its light-duty work policy.

Walley had no income between the date of his December 1996 back injury and June 1997, when Bender accepted responsibility for paying LHWCA benefits to Walley. Dr. West released Walley to return to full-duty work effective September 1, 1997.

Although Bender paid Walley’s medical expenses and also his LHWCA compensation benefits accruing after the June 1997 meeting with the Department of Labor, it was not until July 1998 that Bender paid Walley the temporary disability benefits due for the period from his December 1996 injury until the June 1997 meeting. Bender subsequently paid penalties assessed by the Department of Labor against Bender for its failure to ■ make timely compensation payments in accordance with the LHWCA. See 33 U.S.C. § 914(e).

Walley was unable to pay his living expenses for several months after Dr. West released him for light-duty work in January 1997. As noted, during the period, Bender did not pay Walley compensation benefits under the LHWCA and did not provide him with light-duty work. As a result, Walley borrowed money from family and friends to pay his living expenses. He also received assistance from community resources, and he eventually applied for and received food stamps. Walley averted creditors’ efforts to repossess his truck and to foreclose on his home by borrowing money from his family, including a $20,000 loan from his parents. Because he had no source of income, Walley was unable to pay a court-ordered monthly child-support obligation for the benefit of his son. Wal-ley stated that his former wife attempted to have him held in contempt for his failure to pay child support and that she refused to let him exercise his visitation rights with their son until he had paid all of his child-support obligation. As noted above, in July 1998, Bender paid Walley all of the remaining temporary disability compensation to which he was entitled. After receiving that payment, Walley paid his past-due child-support obligation; he had been unable to visit with his son for approximately 18 months. There was evidence introduced at trial indicating that Walley was so affected by his circumstances that, in May 1997, a neighbor had Walley hospitalized because he had not been eating and she was concerned about his being depressed.

In October 1997, Walley sued Bender in the Mobile Circuit Court alleging, in pertinent part, that Walley was entitled to an offer of light-duty work after he was released for such work in January 1997, but that Bender falsely represented to Walley that no light-duty work was available. Walley alleged that as a result of Bender’s alleged fraud, he suffered monetary losses and mental anguish; he requested both compensatory damages and punitive damages.

As previously indicated, by July 1998, Bender had paid Walley all of the temporary disability compensation to which Wal-ley was entitled pursuant to the LHWCA. Thereafter, Bender filed a motion for a summary judgment arguing, among other things, that Walley’s fraud claim was barred by the exclusivity provision of the LHWCA, 33 U.S.C. § 905(a), and also that, although some courts have recognized an intentional-tort exception to the LHWCA’s exclusivity provision if the employer has specifically intended to injure the employee, Walley had failed to allege and offer evidence that Bender specifically intended to injure him. The trial court denied Bender’s motion.

Walley’s case proceeded to trial. At the close of Walley’s evidence and again at the close of all of the evidence, Bender filed motions for a judgment as a matter of law, renewing its argument that Walley’s fraud claim was barred by the exclusivity provision of the LHWCA and that Walley did not qualify for the intentional-tort exception to the LHWCA’s exclusivity provision. The trial court denied both of those motions and submitted Walley’s claim to the jury only as a claim alleging intentional fraud. As noted above, the jury returned a verdict in favor of Walley and against Bender for $40,000 in compensatory damages, and the court entered a judgment on that verdict. Bender filed a postjudgment motion for a judgment as a matter of law pursuant to Rule 50, Aa. R. Civ. P.; the trial court denied that motion.

II. Issues

On appeal, Bender renews its argument that the LHWCA is Walley’s exclusive remedy. Bender notes in its initial brief to this court that some courts have held that the LHWCA’s exclusivity provision does not bar an employee’s separate tort claim against his employer if the employee can prove that the employer specifically intended to injure the employee, see, e.g., Houston v. Bechtel Assocs. Professional Corp., 522 F.Supp. 1094 (D.C.Cir.1981) (holding that nothing short of specific intent to injure falls outside the scope of the LHWCA), Austin v. Johns-Manville Sales Corp., 508 F.Supp. 313 (D.C.Me.1981), and contends that Walley did not introduce substantial evidence of a specific intent by Bender to injure Walley. Walley responds by arguing that any so-called “specific intent” exclusion to the exclusivity provision of the LHWCA is inapposite because, he argues, his claim does not fall within the province of the LHWCA to begin with.

As a preliminary matter, we note that the “specific intént to injure” that, under the above-cited cases, would be necessary to remove an employer’s action from the protection of the exclusivity provision of the 33 U.S.C. § 905(a) is not the same as the “general intent” that must be shown as a matter of state law in order to make out a claim for intentional fraud. Under Alabama law, in order to prove intentional fraud, a plaintiff must show (1) an intentional misrepresentation (2) of a material fact, (3) upon which the plaintiff reasonably relies, see Newman v. First National Bank of Mobile, 497 So.2d 106 (Ala.1986), and (4) that, as a proximate result of the misrepresentation, the plaintiff suffers actual damage. See, e.g., Reeves Cedarhurst Dev. Corp. v. First American Federal Sav. & Loan, 607 So.2d.180 (Ala.1992); Mobile Dodge, Inc. v. Waters, 404 So.2d 26, 27 (Ala.1981). See also § 6-5-103, Ala.Code 1975. In order to show the requisite intent to satisfy the first of these elements, a plaintiff must simply show a willful misrepresentation with “knowledge of [the] falsehood or reckless disregard for the truth,” Dodd v. Nelda Stephenson Chevrolet, Inc., 626 So.2d 1288, 1292 (Ala.1993), not a specific intent to injure.

We also note that, in addition to the argument Bender reiterates on appeal regarding the exclusivity of Walley’s remedy under the LHWCA, in its summary-judgment motion and its motions for a judgment as a matter of law, Bender also asserted that Walley failed to present substantial evidence as to the various elements of intentional fraud under state law. On appeal-, however, Bender does, not .reassert this position. We therefore do not have before us the issue of whether the evidence was sufficient to support a finding that, at the time it declined to offer light-duty work to Walley, Bender actually knew that Walley’s December 1996 injury was of such a nature that Bender was responsible for the payment of LHWCA benefits with respect thereto (and, therefore, actually knew that Walley fell within Bender’s light-duty work policy), that Wal-ley’s reliance on the alleged misrepresentation was reasonable or that the damage suffered by Walley was a proximate result of his reliance on the alleged misrepresentation. Both this court and our Supreme Court have held that we will not address arguments not raised on appeal. See Deutcsh v. Birmingham Post Co., 603 So.2d 910, 911 (Ala.1992), cert. denied, 506 U.S. 1052, 113 S.Ct. 976, 122 L.Ed.2d 130 (1993); Newton v. Town of Columbia, 695 So.2d 1213, 1216 (Ala.Civ.App.1997).

Turning to the merits of Bender’s argument regarding the exclusivity of the benefits prescribed under the LHWCA, we note that the LHWCA states that “[e]very employer shall be liable for and shall secure the payment to his employees of the compensation payable under sections 907, 908, and 909 of this title.” 33 U.S.C. § 904(a). Section 905(a) states, in pertinent part:

“The liability of an employer prescribed in section 904 of this title shall be exclusive and in place of all other liability of such employer to the employee, his legal representative, ... and anyone otherwise entitled to recover damages from such employer at law or in admiralty on account of such injury.”

33 U.S.C. § 905(a). The LHWCA defines an “injury,” in pertinent part, as an “accidental injury ... arising out of and in the course of employment.” 33 U.S.C. § 902(2).

Bender argues, among other things, that § 905(a) barred Walley’s intentional-fraud claim, because, it says, the fraud claim relates to the alleged mishandling or denial of benefits due under the LHWCA and arose out of Walley’s work-related injury. In support of its argument, Bender relies heavily upon Atkinson v. Gates, McDonald & Co., 838 F.2d 808 (5th Cir.1988), and similar cases that hold that an employee’s state-law. claims for bad-faith refusal to pay LHWCA compensation and for wrongful termination of LHWCA compensation are barred by § 905(a). See Barnard v. Zapata Haynie Corp., 975 F.2d 919 (1st Cir.1992); Hall v. C & P Tel. Co., 809 F.2d 924 (D.C.Cir.1987); Sample v. Johnson, 771 F.2d 1335 (9th Cir.1985); Kinder v. Crawford and Co., 962 F.Supp. 10, 11 (D.Puerto Rico 1997).

All of the cases cited by Bender are distinguishable from the' present case. Each concerns the withholding of benefits due under the LHWCA As the court stated in Atkinson:

“Atkinson ‘is asserting what are in essence state law claims for bad faith intentional infliction of emotional distress’ in terminating and refusing to pay compensation benefits and medical expenses which Atkinson was entitled to under the LHWCA. [Atkinson v. Gates, McDonald & Co., 665 F.Supp. 516, 519-20 (S.D.Miss.1987).] The district court held, and we agree, ‘that the exclusivity provisions of both the Nonappropriated Fund Instrumentalities Act and the LHWCA, ... coupled with the penalty provision ... of the LHWCA, operate to bar Atkinson’s claims.’ Id. at 519.... In essence, then, Atkinson’s state law claims are preempted by the Unappropriated Fund Instrumentalities Act and the LHWCA, which provide the exclusive remedy for the nonpayment of compensation benefits due thereunder.”

Atkinson, 838 F.2d at 809-10 (footnotes omitted; emphasis added).

Unlike Atkinson and the other cases cited by Bender, the present case does not involve benefits an employer is required to pay pursuant to the LHWCA. The LHWCA- did not require Bender to provide light-duty work to Walley as part of his “compensation,” and it did not provide Walley with any redress for Bender’s alleged fraud in denying him light-duty work. See generally 33 U.S.C. § 901 et seq. The mere fact that Walley could not claim Bender’s light-duty-work benefit unless Bender was also responsible for paying his LHWCA compensation did not convert the light-duty-work benefit into “compensation” due under the LHWCA. Thus, Bender’s argument that Walley’s claim is simply a claim for the mishandling or denial of benefits due under the LHWCA is without merit. Cf. Stoecker v. Brush Wellman, Inc., 194 Ariz. 448, 452, 984 P.2d 534, 538 (1999) (holding that an employee’s contract claim for benefits promised by an employer to supplement workers’ compensation benefits was not barred by the workers’ compensation statute’s exclusivity provision and noting that the employee’s claim was not a disguised attempt to collect, in tort for his on-the-job injury, but was a “contract count, seeking only money owed by reason of [the employer’s] contractual obligation to supplement ... compensation benefits”); Shattuck-Owen v. Snowbird Corp., 16 P.3d 555, 561 (Utah 2000) (“interpreting the exclusivity provision to void all contracts for benefits of the type also provided by workers’ compensation would allow unscrupulous employers to take advantage of unsophisticated workers by promising benefits that the employers have no intention of delivering”; quoting 9 A. Larson & L. Larson, Larson’s Workers’ Compensation Law § 157.05[3], 157-46 (2000), . for the proposition that “ ‘contractual excess is not workers’ compensation. It performs the same functions, and is payable under the same general conditions, but legally it is nothing more than the fruit of a private agreement to pay a sum of money on specified conditions’ ”).

Bender cites Atkinson for the proposition that “a ‘state law cause of action for conduct which the LHWCA addresses is in effect preempted by the LHWCA even though the relevant LHWCA section contains no expressly preemptive language.’ ” This may be a correct statement of law, but it does not dispose of the issue presented in this case, because the conduct at issue — Bender’s misrepresentation concerning an undertaking outside the LHWCA — is not “conduct which the LHWCA addresses.” The emphasized language in the following passages from Atkinson serve to highlight the difference that distinguishes Atkinson from the present case: (1) “[T]he LHWCA is plainly preemptive of any state law claim for intentional or bad faith wrongful refusal to pay benefits due under the Act.” 838 F.2d at 812 (emphasis added). (2) “[A] majority of courts have held that workers’ compensation statutes, particularly where they address the subject of delayed or withheld compensation benefits, provide the exclusive remedy.” Id. at 813 (emphasis added). (3) ‘Since the Act itself provides not only for payment of benefits, but also for redress in the event of nonpayment of benefits, and further does not distinguish between good faith and bad faith nonpayment of benefits, the apparent intent of the Act is that the penalty provisions provide the exclusive remedy for late payment or nonpayment of benefits.’ 838 F.2d at 812 (quoting Atkinson, 665 F.Supp. at 521) (emphasis added). (4) An employer has the “unfettered right to controvert a claim for compensation.” 838 F.2d at 812 (emphasis added).

Unlike the claims in Atkinson and the other cases relied upon by Bender, the state-law claim submitted to the jury in the present ease was not a claim for an alleged improper handling or denial of benefits due under the LHWCA. As noted, Bender eventually paid all compensation and medical benefits due Walley under the Act, as well as all related penalties due under the Act, and Walley dismissed his claims pertaining to Bender’s initial denial of those benefits.

Walley’s claim that was submitted to the jury was based upon an alleged intentional misrepresentation that there was no light-duty work available during the period of Walley’s temporary disability. Any obligation to provide Walley with such light-duty work in the first place, and therefore any duty to avoid misrepresenting the availability of such work, arose outside of the LHWCA. It arose because Bender undertook to provide such work and the full compensation associated therewith as an additional benefit to its employees. Providing such work was not a benefit required by the LHWCA.

Unlike the plaintiffs claims in Atkinson, Walley’s claims in the present case do not seek redress for the employer’s “refusal to pay benefits due under the Act.” We therefore hold that the trial court properly submitted Walley’s state-law fraud claim to the jury and affirm the trial court’s judgment based on the resulting jury verdict.

AFFIRMED.

YATES, P.J., and CRAWLEY, THOMPSON, and PITTMAN, JJ., concur.

      . A work-related accident that aggravates or worsens a prior injury, or that results in a new injury, is compensable under the LHWCA by the employer for whom the employee was working at the time of the accident. See Jacksonville Shipyards, Inc. v. Director, Office of Workers’ Compensation Programs, United States Dep't of Labor, 851 F.2d 1314, 1316-17 (11th Cir.1988); Foundation Constructors, Inc. v. Director, Office of Workers Compensation Programs, 950 F.2d 621 (9th Cir.1991). Wagner admitted that she knew that Walley was entitled to LHWCA benefits from Bender if the December 1996 injury had aggravated Wal-ley’s 1990 injury, or if the December 1996 injury was a new injury. As previously noted, under the policy that had been developed by Bender, if an employee suffered from a temporary partial disability that entitled the employee to LHWCA benefits from Bender, Bender assumed the additional obligation of offering light-duty work to that employee, if such work was available.

      . Davis testified that Walley was informed that he was not “eligible” for light-duty work, not that it had no light-duty work. However, Walley testified that he was never informed that he was not “eligible” for light-duty work, and Dr. West's notes from a telephone conversation he had with Wagner on January 24, 1997, stated, in pertinent part, "[p]er [Wagner], Bender has no light duty work available.” It was undisputed that Bender had light-duty work available when it allegedly informed Walley that it did not.

      . Although Walley accepted Bender's June 1997 offer of light-duty work, for part of the time between June 1997 and Walley’s return to full-duty work in September 1997, he was unable to engage in such work and therefore accepted temporary disability benefits for part of that time.

      . With the payments made by Bender in July 1998, Bender completed the payment of all compensation and medical benefits due Wal-ley under the LHWCA.

      . Walley also alleged that Bender had wrongfully refused to timely pay him temporary disability benefits to which he was entitled during 1997; however, these claims were not submitted to the jury.

        , Although reckless disregard, for the truth may normally be sufficient to show “intentional” fraud as a matter of state law, in the present case the trial court did not'instruct the jury as to "reckless misrepresentation,” but limited its instructions to the concept of a "willful misrepresentation.” Specifically, the court instructed the jury that Bender must have "willfully misrepresented a material fact to the plaintiff -with the intent to induce plaintiff to act thereon,” and that the defendant must have "deceived the plaintiff by a willful representation of a material fact as true which it knew to be untrue to induce the plaintiff to act” and that "the defendant's knowledge of the falsehood is an essential element.” Walley acquiesced in the limitation of the jury charge in this manner.

      . We also note that an issue exists as to whether Walley's injuries sound in contract or in tort, i.e., whether Walley's injuries resulted from a breach by Bender of a contractually assumed obligation to provide light-duty work to certain employees or from an alleged tor-tious misrepresentation relating to that obligation. During the trial, the parties discussed whether a breach-of-contract claim was barred by the exclusivity provisions of the LHWCA; however, Walley never asserted a claim for breach of contract.

      . See also Lowman v. Piedmont Executive Shirt Mfg. Co., 547 So.2d 90, 95 (Ala.1989) (where employee alleged that while she was in the hospital recovering from an on-the-job injury, her employer attempted to have her file documents stating that her injury actually occurred at home, the Alabama Supreme Court held that the employee's fraud claim fell outside the exclusivity provision of Alabama's Workers' Compensation Statute, rejecting a "boot-strapping” approach that would depend on a "but-for” relationship between the on-the-job injury and the employer’s subsequent actions); Griggs v. All-Steel Buildings, Inc., 209 Ga.App. 253, 255, 433 S.E.2d 89, 90 (1993) (an employee, who was mentally impaired by a work-related accident, alleged that the employer's workers’ compensation insurance carrier had fraudulently procured a settlement of his workers' compensation claim. The Georgia Court of Appeals rejected the application of the exclusivity provision of Georgia’s workers’ compensation statute and stated that, "[fjraud ... is not an 'accident' and the damages resulting therefrom do not arise 'out of or in the course of the employment,' but rather, result from the intentional misconduct of the defendants subsequent to the physical injuries which gave rise to the original workers’ compensation claim.”).


author: LYONS, Justice.

text:
    Ex parte BENDER SHIPBUILDING & REPAIR COMPANY, INC. (In re Bender Shipbuilding & Repair Co., Inc. v. Faron Walley).
    1020545.
    Supreme Court of Alabama.
    Oct. 3, 2003.

      Douglas L. Brown and Craig D. Martin of Armbrecht Jackson, LLP, Mobile, for petitioner.
    John R. Spencer, Mobile; and C.S. Chie-palich, Mobile, for respondent.
   LYONS, Justice.

Bender Shipbuilding & Repair Company, Inc., appealed to the Court of Civil Appeals from a judgment entered on a jury verdict in favor of Faron Walley. The Court of Civil Appeals affirmed the judgment. Bender Shipbuilding & Repair Co. v. Walley, 879 So.2d 568 (Ala.Civ.App.2002). We granted certiorari review; we reverse and remand.

The Court of Civil Appeals stated the facts as follows:

“In 1990, [Faron] Walley injured his upper back while he was working at Bender’s shipyard as a shipfitter for a company known as T.J. Adams, a subcontractor of Bender. For the next two years, Walley was unable to work because of his injury. During this time, T.J. Adams, through its workers’ compensation insurance carrier, Liberty Mutual, paid for Walley’s medical treatment and also paid Walley temporary disability compensation pursuant to the LHWCA [Longshoremen and Harbor Workers’ Compensation Act, 33 U.S.C. § 901 et seq.]. Dr. James West, Walley’s treating physician, eventually assigned him a 5% permanent impairment rating and released him for full-duty work with no restrictions in 1992. After his release, Walley worked for the next three years as a shipfitter, welder, and fabricator for two companies other than T.J. Adams and Bender. Walley was able to perform the same type of work he had performed before his 1990 back injury. During the three-year period between 1992 and 1995, Walley had no further injury to his back.
“In 1995, Walley was again employed by a subcontractor to work at Bender’s shipyard. After approximately three months, however, Bender hired Walley to work directly for Bender. At that time, Walley was examined by Bender’s physician and was determined to be physically and mentally fit for work as a shipfitter.
“In November 1996, Walley complained to his foreman at Bender that he was experiencing work-related soreness in his upper back and shoulder. Walley was examined by Dr. West and was prescribed some pain medication; he immediately returned to work. He worked for the next few weeks without incident.
“On December 9, 1996, Walley injured his back while lifting a mooring hook on a ship at Bender’s shipyard. Walley informed his foreman of the injury and finished his shift despite the injury. The next morning, Walley’s back pain had worsened and he contacted his foreman, who told him to contact Vicki Wagner, an employee in Bender’s safety department. When Wagner asked Walley whether his injury was related to his 1990 upper-back injury, Walley stated that it might be, but that his entire back was hurting. Conflicting evidence was introduced at trial as to whether Wal-ley’s December 1996 injury was a recurrence of his 1990 injury, as opposed to an aggravation of his 1990 injury or a new injury. More importantly for purposes of Walley’s intentional-fraud claim, there was conflicting evidence as to whether Bender understood and believed Walley’s December 1996 injury to be a recurrence of his 1990 injury, rather than an aggravation of that injury or a new injury.
“Wagner made Walley an appointment with Dr. West, who examined Wal-ley on December 10, 1996, and informed him that he should not return to work at that time. Dr. West examined Walley on four other occasions during the next month and, after each examination, he told Walley that he should not return to work at that time. Although a December 18, 1996, entry by Dr. West on Walley’s medical chart contains a statement that ‘[t]he patient states that this is related to his old injury and not [a] new injury,’ Dr. West’s subsequent January 22, 1997, notes reflect his opinion that ‘this is an exacerbation of [Walley’s] previous injury.’
“On January 22, 1997, Dr. West again examined Walley and released him to return to work with a light-duty restriction. Walley returned to Bender’s shipyard and provided Wagner with his light-duty work release. However, Wal-ley testified that Wagner and Jerry Davis, a safety and risk manager for Bender, discussed the release and told him that Bender had no light-duty work available.
“We note that Bender was self-insured under the LHWCA and that its light-duty work policy for partially disabled employees was in addition to its obligations, with respect to compensation and medical benefits under the LHWCA. Under the light-duty work policy, Bender paid an injured employee the full amount of his or her normal weekly wage when the employee engaged in light-duty work. Employees receiving only temporary disability benefits under the LHWCA received payments equal to only a portion of their normal weekly wage. See 83 U.S.C. § 908. Davis testified that one of the reasons Bender established its light-duty work policy was that it knew that employees could become fearful, anxious, and depressed when they could not return to work after an on-the-job injury and that the policy benefited both Bender and its injured employees.
“Although T.J. Adams, through Liberty Mutual, initially paid for Walley’s medical expenses resulting from his December 1996 injury, T.J. Adams refused to pay Walley’s temporary disability benefits and eventually stopped paying his medical expenses. In March 1997, Walley retained an attorney and filed a complaint against Bender with the United States Department of Labor. Pursuant to its rights under the LHWCA, Bender initially contested Walley’s claim. However, after a June 1997 meeting between the Department of Labor, Bender, and Walley, Bender accepted the Department of Labor’s finding that Bender was responsible for Wal-ley’s medical expenses and compensation benefits under the LHWCA. Bender began paying Walley’s medical expenses and, within a few weeks, also began paying Walley temporary disability benefits. Bender thereupon also offered Walley light-duty work in accordance with its light-duty work policy.
“Walley had no income between the date of his December 1996 back injury and June 1997, when Bender accepted responsibility for paying LHWCA benefits to Walley. Dr. West released Wal-ley to return to full-duty work effective September 1,1997.
“Although Bender paid Walley’s medical expenses and also his LHWCA compensation benefits accruing after the June 1997 meeting with the Department of Labor,' it was not until July 1998 that Bender paid Walley the temporary disability benefits due for the period from his December 1996 injury until the June 1997 meeting. Bender subsequently paid penalties assessed by the Department of Labor against Bender for its failure to make timely compensation payments in accordance with the LHWCA. See 33 U.S.C. § 914(e).
“Walley was unable to pay his living expenses for several months after Dr. West released him for light-duty work in January 1997. As noted, during the period, Bender did not pay Walley compensation benefits under the LHWCA and did not provide him with light-duty work. As a result, Walley borrowed money from family and friends to pay his living expenses. He also received assistance from community resources, and he eventually applied for and received food stamps. Walley averted creditors’ efforts to repossess his truck and to foreclose on his home by borrowing money from his. family, including a $20,000 loan from his parents. Because he had no source of income, Walley was unable to pay a court-ordered monthly child-support obligation for the benefit of his son. Walley stated that his former wife attempted to have him held in contempt for his failure to pay child support and that she refused to let him exercise his visitation rights with their son until he had paid all of his child-support obligation. As noted above, in July 1998, Bender paid Walley all of the remaining temporary disability compensation to which he was entitled. After receiving that payment, Walley paid his past-due child-support obligation; he had been unable to visit with his son for approximately 18 months. There was evidence introduced at trial indicating that Walley was so affected by his circumstances that, in May 1997, a neighbor had Walley hospitalized because he had not been eating and she was concerned about his being depressed.
“In October 1997, Walley sued Bender in the Mobile Circuit Court alleging, in pertinent part, that Walley was entitled to an offer of light-duty work after he was released for such work, in January 1997, but that Bender falsely represented to Walley that no light-duty work was available. Walley alleged that as a result of Bender’s alleged fraud, he suffered monetary losses and mental anguish; he requested both compensatory damages and punitive damages.
“As previously indicated, by July 1998, Bender had paid Walley all of the temporary disability compensation to which Walley was entitled pursuant to the LHWCA. Thereafter, Bender filed a motion for a summary judgment arguing, among other things, that Walley’s fraud claim was barred by the exclusivity provision of the LHWCA, 33 U.S.C. § 905(a), and also that, although some courts have recognized an intentional-tort exception to the LHWCA’s exclusivity provision if the employer has specifically intended to injure the employee, Walley had failed to allege and offer evidence that Bender specifically intended to injure him. The trial court denied Bender’s motion.
“Walley’s case proceeded to trial. At the close of Walley’s evidence and again at the close of all of the evidence, Bender filed motions for a judgment as a matter of law, renewing its argument that Walley’s fraud claim was barred by the exclusivity provision of the LHWCA and that Walley did not qualify for the intentional-tort exception to the LHWCA’s exclusivity provision. The trial court denied both of those motions and submitted Walley’s claim to the jury only as a claim alleging intentional fraud. As noted above, the jury returned a verdict in favor of Walley and against Bender for $40,000 in compensatory damages, and the court entered a judgment on that verdict. Bender filed a postjudgment motion for a judgment as a matter of law pursuant to Rule 50, Aa. R. Civ. P.; the trial court denied that motion.”

879 So.2d at 570-73.(footnotes omitted).

The Court of Civil Appeals rejected Bender’s argument that Walley’s claims were preempted by the Longshoremen and Harbor Workers’ Compensation’Act, 33 U.S.C. § 901 et seq. (“the LHWCA”). That court concluded that the cases cited by Bender were distinguishable because they involved benefits the LHWCA requires an employer to pay. Continuing, the Court of Civil Appeals stated:

“The LHWCA did not require Bender to provide light-duty work to Walley as part of his ‘compensation,’ and it did not provide Walley with any redress for Bender’s alleged fraud in denying him light-duty work. See generally 33 U.S.C. § 901 et seq. The mere fact that Walley could not claim Bender’s light-duty-work benefit unless Bender was also responsible for paying his LHWCA compensation did not convert the light-duty-work benefit into ‘compensation’ due under the LHWCA. Thus, Bender’s argument that Walley’s claim is simply a claim for the mishandling or denial of benefits due under the LHWCA is without merit....
“Unlike [the cases] relied upon by Bender, the state-law claim submitted to the jury in the present case was not a claim for an alleged improper handling or denial of benefits due under the LHWCA. As noted, Bender eventually paid all compensation -and medical benefits due Walley under the Act, as well as all related penalties due under the Act, and Walley dismissed his claims pertaining to Bender’s initial denial of those benefits.
‘Walley’s claim that was submitted to the jury was based upon an alleged intentional misrepresentation that there was no light-duty work available during the period of Walley’s temporary disability. Any obligation to provide Walley with such light-duty work in the first place, and therefore any duty to avoid misrepresenting the availability of such work, arose outside of the LHWCA. It arose because Bender undertook to provide such work and the full compensation benefits associated therewith as an additional benefit to its employees. Providing such work was not a benefit required by the LHWCA.”

879 So.2d at 576-77.

The Court of Civil Appeals’ reasoning is based upon a faulty premise, i.e., that Bender’s program that provided light-duty work to injured employees provided a benefit outside of the LHWCA. The court is correct that the LHWCA does not require an employer to provide light-duty work. The United States Court of Appeals for the Fifth Circuit has defined an employer’s obligation to an injured employee under the LHWCA as follows:

“The LHWCA distinguishes disabilities binarily with respect to both their duration (permanent or temporary) and their degree (partial or total). See 33 U.S.C. § 908.... The duration of disability is a medical question, so an injured employee is considered temporarily disabled under the LHWCA until he attains maximum medical improvement (‘MMI’).... However, because the degree of an employee’s disability is primarily an economic rather than a medical concept,- ‘the availability of suitable alternative employment [is what] distinguishes partial from total disability.’ ... Thus, an employee is entitled to receive temporary total disability benefits, in the form of two thirds of his average weekly wages, so long as his medical condition is believed capable of improvement and he is unable to obtain suitable alternative employment. See 33 U.S.C. § 908(b).”

Pool Co. v. Cooper, 274 F.3d 173, 175 n. 2 (5th Cir.2001) (citing Louisiana Ins. Guar. Ass’n v. Abbott, 40 F.3d 122, 126 (5th Cir.1994)) (emphasis added). Under the LHWCA, once an employee establishes a prima facie case of total disability, the burden then shifts to the employer to establish the availability of other jobs the employee is capable of performing. Abbott, 40 F.3d at 126. See also New Orleans Stevedores v. Turner, 661 F.2d 1031, 1032 (5th Cir.1981). The availability of “suitable alternative employment” is what distinguishes partial disability from total disability. Abbott, 40 F.3d at 126.

An employer can meet its burden of establishing the availability of “suitable alternative employment” by offering the claimant a light-duty job in its facility. Dardin v. Newport News Shipbuilding & Dry Dock Co., 18 BRBS 224, 226 (1986) (“It is beyond question that an employer can meet its burden of establishing suitable alternate employment by supplying light duty work to claimant”). Therefore, an employer charged pursuant to the LHWCA with compensating an injured employee may provide light-duty work for an injured employee in certain circumstances and thereby avoid the obligation to pay that employee temporary total disability benefits that might otherwise apply. If the employer is not able to establish that suitable alternate employment is available, either in its own facility or elsewhere, then the LHWCA obligates the employer to pay disability benefits to the employee. See Manigault v. Stevens Shipping Co., 22 BRBS 332 (1989).

Bender had such a light-duty program. Jerry Davis, Bender’s safety and risk manager at the time of Walle/s disability, testified as follows:

“[T]he thought and ■ the theory behind light duty really arrived out of the medical profession. Doctors realized that when a person gets injured and he is away from his employment, that oftentimes they develop somewhat depression, they get anxiety, they get a fear that they won’t be able to do their jobs, and won’t be able to go back, and the people that they work with won’t respect them, and things like that. So doctors realized that getting the person back to work as soon as he can after an injury was real good for a person’s recovery. And they seem to heal better. They got back into the labor force, they got with their friends and guys that they knew, and things like that. And that whole scenario enabled an injured person to heal and progress more rapidly than sitting home watching the soapbox [sic], or something like that.
“So that’s the theory of getting people back to work. Also it helped in the industry that when somebody was able to do some kind of meaningful employment, it was good for the employee to get back, not only from the company’s standpoint, also from the employee’s standpoint, and also from the doctor’s standpoint.
“So I set up a light-duty program at Bender to get those employees that had some type of temporary injury back to work as soon as possible.”

Davis further testified that Bender’s light-duty-work program was available only to employees who were making claims against Bender for compensation benefits and for whom Bender was directly responsible for paying LHWCA benefits.

In view of the foregoing, and recognizing that “the degree of an employee’s disability is primarily an economic rather than a medical concept,” Pool Co., 274 F.3d at 175 n. 2, we conclude that the availability of a light-duty-work program, while not mandated by the LHWCA, is an economic benefit an employer can offer its employees in lieu of its obligation to pay temporary total disability benefits. Although the LHWCA does not require that such a benefit be provided, claims regarding the mishandling of an economic benefit such as light-duty work, made available to an employee as the employer’s alternative means of complying with the LHWCA, would arise under the LHWCA.

Walley’s complaint alleges:

“On or about January 24, 1997, Defendant, BENDER SHIPBUILDING, by and through its agent and employee, Vick[i] Wagner, represented that Defendant, BENDER SHIPBUILDING, had no light duty positions available for Plaintiff, FARRON WALLEY [sic]. In reliance upon this representation, Plaintiff, [Walley], did not return to work at BENDER SHIPBUILDING following Dr. West’s release to return to work on a light duty basis in January 1997.
“... [A]s a result of the abovesaid misrepresentation by Defendant, BENDER SHIPBUILDING, [Walley] has been damaged in that Plaintiff would have returned to work on a light duty basis following Dr. West’s release in late January 1997, earning his full wages.... Plaintiff, [Walley], has received no wages from Defendant, BENDER SHIPBUILDING, since his December 9, 1996 accident, nor has he received temporary total disability benefits for any period of time that he has not returned to work following this injury.”

Walley sought compensatory and punitive damages against Bender for “fraud, deceit, misrepresentation and mental anguish.” The trial court submitted Walley’s claim to the jury as an “intentional fraud claim,” and the Court of Civil Appeals also refers to the claim in that manner. Despite being labeled an “intentional fraud claim,” however, Walley’s claim is actually a claim alleging that Bender, intentionally or in bad faith, refused to award a benefit to him and, in so doing, intentionally inflicted emotional distress. We treat a pleading and any other filing according to its substance, rather than its form or its style. Breaux v. Bailey, 789 So.2d 204 (Ala.2000). Therefore, the issue in this case is whether Walley’s claim against Bender for its intentional refusal to pay benefits in the form of alternative employment at full pay is preempted by the LHWCA.

Most federal courts that have examined the question whether an employee’s state-law claims alleging intentional or bad-faith refusal to pay LHWCA compensation, wrongful termination of LHWCA benefits, or the intentional infliction of emotional distress as a result of failure to pay or the termination of LHWCA benefits have concluded that such claims are preempted by the LHWCA. See, e.g., Barnard v. Zapata Haynie Corp., 975 F.2d 919, 920 (1st Cir.1992) (holding that the plaintiffs claim for the employer’s intentional infliction of emotional distress in failing to pay benefits was preempted by the LHWCA and that the LHWCA is the “exclusive remedy for [an employer’s] failure to make timely [compensation] payments, irrespective of [the employer’s] reasons for nonpayment”); Atkinson v. Gates, McDonald & Co., 838 F.2d 808, 812 (5th Cir.1988) (holding that a state-law cause of action addressed by the LHWCA is preempted and that “the LHWCA is plainly preemptive of any state law claim for intentional or bad faith wrongful refusal to pay benefits due under the [LHWCA]”); Texas Employers’ Ins. Ass’n v. Jackson, 820 F.2d 1406 (5th Cir.1987), rev’d on other grounds, 862 F.2d 491 (5th Cir.1988) (en banc); Hall v. C & P Tel. Co., 809 F.2d 924 (D.C.Cir.1987) (claims alleging intentional infliction of emotional distress in bad-faith refusal to make timely compensation payments fall within the exclusivity provisions of the LHWCA); Sample v. Johnson, 771 F.2d 1335 (9th Cir.1985) (claims for wrongful refusal to pay or delay in paying LHWCA benefits are preempted by the LHWCA).

In Jackson, a panel of the United States Court of Appeals for the Fifth Circuit concluded that the employee’s bad-faith claims brought under Texas law were preempted by the LHWCA. Jackson had sued his employer’s LHWCA insurance carrier in state court, alleging bad-faith insurance practices on the part of the carrier. The Jackson court explained that federal law preempts state law in three circumstances: first, when Congress explicitly expresses its intent to preempt state law; second, when Congress’s intent to displace state law can be inferred through the comprehensiveness or pervasiveness of the federal regulatory scheme; and third, when state law conflicts with federal law or interferes with the accomplishment and execution of Congress’s purpose. 820 F.2d at 1411. The panel then concluded that the LHWCA preempted the state law invoked by Jackson in all three circumstances. Id. That portion of the panel’s decision was affirmed by the Fifth Circuit sitting en banc, although the en banc court reversed the decision on other grounds. See 862 F.2d at 496 n. 7.

In Atkinson, the Fifth Circuit noted that “a majority of courts have held that workers’ compensation statutes, particularly where they address the subject of delayed or withheld compensation benefits, provide the exclusive remedy in that respect.” 838 F.2d at 813. The Fifth Circuit then quoted the following from 2A Larson, Workmen’s Compensation Law § 68.34(c), 13-145 to -146 (1987):

“ ‘It seems clear that a compensation claimant cannot transform a simple delay in payments into an actionable tort by merely invoking the magic words “fraudulent, deceitful and intentional” or “intentional infliction of emotional distress” or “outrageous” conduct in his complaint. The temptation to shatter the exclusiveness principle by reaching for the tort weapon whenever there is a delay in payments or a termination of treatment is all too obvious, and awareness of this possibility has undoubtedly been one reason for the reluctance of courts to recognize this tort except in cases of egregious cruelty or venality.
“ ‘One final factor may be noted that has figured in many of these cases: the presence in the statute of an administrative penalty for the very conduct on which the tort suit is based. A majority of the courts have taken the view that this evidences a legislative intent that the remedy for delay in payments, even vexatious delay, shall remain within the system in the form of some kind of penalty.’ ”

838 F.2d at 814.

The foregoing observation in Atkinson points out another reason most courts hold that claims alleging an employer’s intentional refusal to pay benefits are preempted by the LHWCA. The LHWCA imposes upon employers a penalty for withholding benefits for any reason; it does not distinguish between good-faith or bad-faith withholding of benefits. 838 F.2d at 812. As the Court of Civil Appeals noted, Bender paid the statutory penalty to Walley imposed by the Department of Labor upon its determination that Bender owed compensation benefits to Walley.

Walley relies upon Martin v. Travelers Insurance Co., 497 F.2d 329 (1st Cir.1974), to support his argument that his claims against Bender for refusing to make light-duty work available to him can properly be brought in state court. In Martin, the United States Court of Appeals for the First Circuit held that the LHWCA may not preclude a claimant from pursuing a state-law action where the basis of the state-law claims does not arise out of or in the course of the claimant’s employment. The unsuccessful employee in Jackson also relied upon Martin. The Fifth Circuit in Jackson declined to follow Martin, basing that decision not only upon its own conclusions about the preemptive effect of the LHWCA, but also upon the United States Supreme Court’s reasoning in Allis-Chalmers Corp. v. Lueck, 471 U.S. 202, 105 S.Ct. 1904, 85 L.Ed.2d 206 (1985). In Lueck, an employee sued his employer and the employer’s insurer in state court, alleging bad-faith failure to pay disability benefits. The Supreme Court of Wisconsin held that the employee could proceed with his action in state court. The United States Supreme Court reversed the judgment of the Wisconsin Supreme Court, holding that § 301 of the Labor Management Relations Act preempted the state tort claim and emphasizing the importance of national uniformity in enforcing the terms of collective-bargaining agreements. The Jackson court noted that although the Supreme Court in Lueck “purported not to decide whether a state bad faith failure to pay a tort claim would be preempted by ‘other federal laws governing employment or benefit plans,’ the reasoning in Lueck is just as compelling, if not more so, when applied to the situation in the instant case.” 820 F.2d at 1413-14 (quoting Lueck, 471 U.S. at 220, 105 S.Ct. 1904). Furthermore, in Barnard v. Zapata Haynie Corp., supra, the First Circuit pointed out that in Martin the insurance carrier had stopped payment on drafts it had issued to the employee. Distinguishing Martin, the First Circuit stated:

“[T]he facts in the present case relate solely to a refusal to pay benefits, and do not involve a stop payment or dishon- or of a draft issued to a claimant against which the claimant in good faith issued checks of his own.... [W]e find the LHWCA to be Barnard’s exclusive remedy for defendants’ failure to make timely payments, irrespective of defendants’ reasons for nonpayment.”

975 F.2d at 920.

In light of the weight of the authority holding that an employee’s state-law claims alleging the intentional refusal or failure to pay benefits against an employer covered by the LHWCA are preempted by the LHWCA, we conclude that Walley’s claim against Bender for failure to confer a benefit offered only as a means of the employer’s satisfying its obligations under the LHWCA is likewise precluded. We reverse the judgment of the Court of Civil Appeals and remand the case for that court to direct the trial court to enter a judgment in favor of Bender.

REVERSED AND REMANDED.

HOUSTON, SEE, BROWN, HARWOOD, WOODALL, and STUART, JJ., concur.

JOHNSTONE, J., recuses himself.

      . The cite to 18 BRBS 224 refers to a case decided by the Benefits Review Board of the United States Department of Labor, the administrative appellate tribunal established by the LHWCA with jurisdiction over LHWCA claims.


text:
    BENDER SHIPBUILDING & REPAIR CO., INC. v. Faron WALLEY.
    2000802.
    Court of Civil Appeals of Alabama.
    Nov. 7, 2003.
    Douglas L. Brown and Chris B. Estes of Armbrecht Jackson, LLP, Mobile, for appellant.
    C.S. Chiepalich, Mobile; and John R. Spencer, Mobile, for appellee.
   On Remand from the Alabama Supreme Court

MURDOCK, Judge.

The prior judgment of this court has been reversed and the cause remanded by the Supreme Court of Alabama. See Ex parte Bender Shipbuilding & Repair Co., 879 So.2d 577 (Ala.2003). In compliance with the Supreme Court’s opinion, the judgment of the trial court is hereby reversed; the trial court is directed on remand to enter a judgment in favor of Bender Shipbuilding & Repair Co., Inc.

REVERSED AND REMANDED WITH INSTRUCTIONS.

YATES, P.J., and CRAWLEY, THOMPSON, and PITTMAN, JJ., concur.