author: SEE, Justice.

text:
    SOUTHEAST CANCER NETWORK, P.C. v. DCH HEALTHCARE AUTHORITY, INC., et al.
    1012382.
    Supreme Court of Alabama.
    June 13, 2003.

      E. Glenn Waldrop, Jr., of Lightfoot, Franklin & White, L.L.C., Birmingham; and Andrew P. Campbell of Campbell, Waller & Poer, LLC, Birmingham, for appellant.
    James J. Jenkins and Terri Olive Tompkins of Phelps, Jenkins, Gibson & Fowler, L.L.P., Tuscaloosa, for appellees DCH Healthcare Authority, Inc., d/b/a DCH Regional Medical Center and d/b/a Northport Medical Center.
    Gary M. London and F.A. Flowers III of Burr & Forman, L.L.P., Birmingham, for appellee Oncology Associates of West Alabama, P.C., et al.
   SEE, Justice.

Southeast Cancer Network, P.C. (“Southeast”), sued DCH Healthcare Authority, Inc. (“DCH”), and Oncology Associates of West Alabama, P.C., and its members (Oncology Associates and its members are hereinafter referred to collectively “Oncology Associates”), alleging claims of tortious interference with a business relationship and of engaging in an unlawful trust, combine, or monopoly in violation of § 6-5-60, Ala.Code 1975, and seeking a judgment declaring DCH’s exclusive contract with Oncology Associates void under § 8-1-1, Ala. Code 1975. The trial court entered a summary judgment in favor of DCH and Oncology Associates. Southeast appeals only from the portion of the summary judgment declaring DCH’s exclusive contract with Oncology Associates valid. Because the trial court found that no facts were in dispute and because Southeast fails to demonstrate that the trial court erred in its application of law to those facts, we affirm the trial court’s summary judgment against Southeast.

Facts and Procedural History

In 1982, DCH was incorporated as a public hospital corporation pursuant to authorizing resolutions adopted by Tuscaloosa County, the City of Tuscaloosa, and the City of Northport. DCH’s certificate of incorporation provides that DCH shall have all the powers and authority permitted to it under the Health Care Authorities Act of 1982. § 22-21-310 et seq., Ala.Code 1975. DCH owns and operates DCH Regional Medical Center in Tuscaloosa and Northport Medical Center in Northport. DCH leases and operates Fayette Medical Center in Fayette.

Oncology Associates of West Alabama, P.C., is a medical professional corporation located in Tuscaloosa. All physicians employed by Oncology Associates of West Alabama hold privileges to practice oncology at DCH facilities.

Southeast employs 11 physicians. Southeast’s physicians have offices in Tuscaloosa, Fort Payne, Decatur, Sylacauga, and Montgomery, Alabama, and in Lebanon, Tennessee. Southeast’s physicians hold staff privileges at over 30 hospitals in Alabama and Tennessee. Southeast operates an oncology clinic in Tuscaloosa. Some physicians employed by Southeast may have practiced oncology at DCH-operated facilities before November 1997.

DCH has no objection to granting general staff privileges at any of its hospitals to Southeast’s physicians. In fact, one Southeast physician, Dr. Pamela Hughes, holds staff privileges to practice internal medicine at all three DCH hospitals. DCH, however, declines to grant Southeast’s physicians specialist-staff privileges to practice oncology at a DCH hospital.

DCH and Oncology Associates maintain that there are in the “surrounding area” at least 10 medical centers, in addition to the hospitals operated by DCH and the 31 hospitals at which Southeast’s physicians hold staff privileges, that provide oncological services. At least 5 of those medical centers are within 60 miles of Tuscaloosa.

On November 18, 1997, DCH entered into a five-year contract with Oncology Associates to provide oncology services at medical centers operated by DCH. The agreement contains the following exclusivity provision:

“This agreement is exclusive for the provision of inpatient and outpatient oncology services and [DCH] agrees that during the terms of this Agreement it will not allow or permit any person or entity other than Oncology Associates to provide inpatient or outpatient oncology services (either directly or indirectly) in the Center or the Cancer Program (including physician oncology services at all [DCH] owned operated hospitals or health care facilities) without the written consent of Oncology Associates, which consent Oncology Associates may unreasonably withhold.”

On October 4, 2000, Southeast sued DCH, Oncology Associates, and the individual defendants, alleging that the defendants had violated Alabama’s antitrust laws by engaging in an unlawful trust, combine, or monopoly and had tortiously interfered with Southeast’s business relationships, and seeking a declaration that the exclusive agreement between DCH and Oncology Associates was void because it violated § 8-1-1, Ala.Code 1975. The gravamen of Southeast’s complaint was that the exclusive contract DCH maintains with Oncology Associates precludes Southeast’s physicians from practicing inpatient oncology at facilities operated by DCH.

DCH and Oncology Associates moved for a summary judgment. On August 19, 2002, the trial court entered a summary-judgment in favor of DCH and Oncology Associates as to all claims. The trial court found there were no material facts in dispute and that § 22-21-318(a)(31) and (32), Ala.Code 1975, permit DCH to engage in anticompetitive behavior. The trial court found that DCH had not tortiously interfered with any of Southeast’s business relationships because DCH has a legal right to enter into exclusive contracts. Finally, the trial court found that Oncology Associates was entitled to a summary judgment because DCH’s immunity from antitrust liability extends to private parties with whom DCH enters into contracts. Southeast now appeals the trial court’s refusal to declare DCH’s contract with Oncology Associates void under § 8-1-1, Ala.Code 1975.

"To exercise all powers granted hereunder in such manner as it may determine to be consistent with the purposes of this article, notwithstanding that as a consequence of such exercise of such powers it engages in activities that may be deemed 'anticompeti-tive' within the contemplation of the antitrust laws of the state or of the United States....”

Issue on Appeal

The sole issue presented on appeal is whether the trial court erred in finding that DCH’s contract with Oncology Associates is not void under § 8-1-1, Ala.Code 1975.

Analysis

“The standard of review applicable to a summary judgment is the same as the standard for granting the motion, that is, we must determine whether there was a genuine issue of material fact and, if not, whether the movant was entitled to a judgment as a matter of law. Our review is further subject to the caveat that this Court must review the record in a light most favorable to the nonmovant and resolve all reasonable doubts against the mov-ant. Wilson v. Brown, 496 So.2d 756, 758 (Ala.1986); Harrell v. Reynolds Metals Co., 495 So.2d 1381 (Ala.1986). See also Manners v. Balfour Guthrie, Inc., 564 So.2d 412 (Ala.1990).”

Brewer v. Woodall, 608 So.2d 370, 372 (Ala.1992)(cited with approval in Stiff v. Alabama Alcoholic Beverage Control Bd., [Ms. 1010169, May 2, 2003] — So.2d-, -(Ala.2003)).

Southeast does not argue that any facts are in dispute. Instead, Southeast argues that the trial court erred in its application of the law and that the contract between DCH and Oncology Associates should be declared void under § 8-1-1, Ala.Code 1975, because that contract prohibits Southeast’s oncologists from practicing oncology at DCH facilities. Southeast argues that DCH has a monopoly in western Alabama, and that DCH’s contract with Oncology Associates denies patients the right to choose their own physician for inpatient oncology care because this monopoly prevents Southeast physicians from practicing in-patient oncology in western Alabama.

Section 22-21-318(a)(31), Ala.Code 1975, provides health-care authorities with immunity from antitrust laws, but Southeast argues that that Code section does not provide DCH and Oncology Associates immunity in this case because § 8-1-1, Ala. Code 1975, is not an antitrust law. Southeast also argues that the contract between DCH and Oncology Associates is void because DCH and Oncology Associates disagree about the scope of the exclusivity provision. According to Southeast, Oncology Associates believes the agreement covers only the practice of oncology, but Southeast asserts that DCH has used the exclusivity provision in its contract with Oncology Associates to deny one of Southeast’s physicians, Dr. Pamela Hughes, the privilege of practicing hematology at a facility operated by DCH.

DCH and Oncology Associates argue that § 8-1-1, Ala.Code 1975, as a matter of law, does not apply in this case because Oncology Associates’ exclusive agreement to provide oncology services for DCH does not restrain physicians who work for Southeast from working as oncologists. DCH and Oncology Associates also argue that Southeast lacks standing to bring a claim under § 8-1-1, Ala.Code 1975, because it is a corporation, not a physician seeking staff privileges at a DCH facility. Finally, DCH and Oncology Associates argue that § 22-21-318, Ala.Code 1975, permits DCH to enter into exclusive contracts with physicians to provide services.

DCH and Oncology Associates argue correctly that their agreement, as a matter of law, does not restrain Southeast’s physicians from practicing oncology. DCH and Oncology Associates’ agreement does not on its face prohibit Southeast’s physicians — who are not parties to the agreement — from practicing oncology. The agreement merely denies Southeast’s employees staff privileges in oncology at medical facilities operated by DCH. Southeast’s physicians practice oncology in at least 30 other hospitals or health-care facilities in Alabama and Tennessee.

“[T]his Court has long held that not every contract which imposes a restraint on trade or competition is void.” Tomlinson v. Humana, Inc., 495 So.2d 630, 631-32 (Ala.1986). The fact that a contract “ ‘may affect a few or several individuals engaged in a like business does not render it void [under § 8-1-1, Ala. Code 1975].’ ” Reed v. Herren, 423 So.2d 139, 142 (Ala.1982)(quoting Terre Haute Brewing Co. v. McGeever, 198 Ala. 474, 480, 73 So. 889, 891 (1916)). Every contract ‘“to some extent injures other parties; that is, it necessarily prevents others from making the sale or sales consummated by such contract.’ ” Reed, 423 So.2d at 142 (quoting Terre Haute Brewing Co. v. McGeever, 198 Ala. 474, 480, 73 So. 889, 891 (1916)).

This Court’s holding in Tomlinson supports the conclusion that the fact that Southeast’s physicians are denied staff privileges at DCH facilities does not restrain them from practicing their profession in violation of § 8-1-1, Ala.Code 1975. In Tomlinson, Shoals Medical Laboratory had an exclusive agreement to provide pathology services to Humana Hospital Rus-selville, Humana Hospital Florence, and Humana Hospital Shoals. Between 1981 and 1984, Tomlinson was employed by Shoals Medical Laboratory and during that time Tomlinson enjoyed staff privileges at the Humana hospitals. In 1984, Shoals terminated Tomlinson. Tomlinson attempted to continue to practice pathology at the three Humana hospitals. Huma-na denied Tomlinson, staff privileges, citing its exclusive contract with Shoals as the reason for denying Tomlinson staff privileges. Humana permitted Tomlinson to provide secondary pathology consultations when a patient or physician specifically requested that he do so. Tomlinson sued Humana under § 8-1-1, Ala.Code 1975, arguing that Humana’s contract with Shoals restricted his ability to practice his profession.

This Court held in Tomlinson that the hospital’s exclusive pathology contract with Shoals “affected only a partial restraint” and was “properly restricted.” 495 So.2d at 632. This Court also held that “[t]he contract in question has no effect on Tom-linson’s ability to practice pathology at any of the other area hospitals, nor [does Hu-mana] completely prohibit him from practicing at the Humana hospitals.” 495 So.2d at 632.

In the present case, DCH’s contract with Oncology Associates does not prevent Southeast’s physicians from practicing at other hospitals or at Southeast’s own outpatient clinic in Tuscaloosa, or from acquiring staff privileges at DCH facilities in areas other than oncology. The record indicates that one Southeast physician has staff privileges in internal medicine at all three of DCH’s hospitals. Therefore, as a matter of law, DCH’s contract with Oncology Associates is not void because it does not restrain Southeast, or Southeast’s employees, in a manner that violates § 8-1-1, Ala.Code 1975. Neither DCH nor Oncology Associates has prevented Southeast or any of its employees from practicing oncology-

Southeast also argues that the trial court erred when it concluded that § 22-21-318(a)(31), Ala.Code 1975, permits DCH and Oncology Associates to restrain trade in violation of § 8-1-1, Ala.Code 1975. Because “[w]e can affirm the trial court ‘on any ground developed in, and supported by, the record,’ ” Lyons v. River Road Constr., Inc., 858 So.2d 257, 265 (Ala.2003)(quoting Ex parte Ramsay, 829 So.2d 146, 155 (Ala.2002)), and because DCH and Oncology Associates’ contract is not void under § 8-1-1, Ala.Code 1975, we need not reach the question whether § 22-21-318(a)(31), Ala.Code 1975, permits a health-care authority to enter into and enforce a contract otherwise made void by § 8-1-1, Ala.Code 1975.

Finally, Southeast argues that the contract between DCH and Oncology Associates is void because DCH and Oncology Associates disagree about the scope of the exclusivity provision. Southeast argues that Oncology Associates believes the agreement covers only the practice of oncology, but Southeast asserts that DCH has used the exclusivity provision in its contract with Oncology Associates to deny one of Southeast’s physicians, Dr. Pamela Hughes, the privilege of practicing hematology at a DCH facility.

Dr. Hughes has not, in an individual capacity, sued DCH or Oncology Associates alleging that either has prevented her from practicing hematology. Section 22-21-318(a)(12) and (32), Ala.Code 1975, authorize DCH to select, appoint, and define the privileges for its medical staff. DCH may grant or withhold whatever privilege it chooses from Dr. Hughes. Any claim that DCH restrained Dr. Hughes from practicing hematology would have to be framed under § 8-1-1, Ala.Code 1975, or as a breach-of-contract claim grounded on whatever agreement concerning staff privileges Hughes may have with DCH. By the same rationale that DCH may enter into an exclusive agreement concerning oncology services with Oncology Associates and not run afoul of § 8-1-1, Ala.Code 1975, DCH could choose not to deal with Dr. Hughes or to extend privileges of any sort to Dr. Hughes. Therefore, even assuming the facts alleged by Southeast concerning Dr. Hughes are correct, Dr. Hughes would not be restrained from practicing hematology and would not be restrained from acquiring staff privileges at any of the other numerous hospitals in the area. Southeast has simply not made the case that DCH and Oncology Associates restrain any physician from practicing medicine by denying him or her oncology staff privileges, or any other Mnd of staff privileges at DCH hospitals.

Conclusion

Because Southeast has failed to demonstrate that the trial court erred in entering a summary judgment in favor of DCH and Oncology Associates, we affirm the trial court’s summary judgment in favor of DCH and Oncology Associates.

AFFIRMED.

MOORE, C.J., and BROWN, HARWOOD, and STUART, JJ., concur.

      . The members and individual defendants are David L. Hinton, Wade A. Young, Mary J. Misichia, Melanie D. Graham, and J. Curtis Tucker.

      . Section 8-l-l(a), Ala.Code 1975, provides: "Every contract by which anyone is restrained from exercising a lawful profession, trade, or business of any kind otherwise than is provided' by this section is to that extent void.”

      . DCH was originally incorporated as “Druid City Health Care Authority.” A 1984 amendment to its certificate of incorporation changed its name to DCH Healthcare Authority, Inc.

      . Southeast stated in the "Statement of Facts” in its opposition to a summary judgment that "Prior to November 1998, [Southeast's] doctors were able to practice in-patient oncology at DCH, as no exclusive contract existed with regards to the providing of inpatient oncological services.” DCH and Oncology Associates, however, entered into their agreement in November 1997. We believe that Southeast misstated the date in its "Statement of Facts.”

      . DCH and Oncology Associates argue that hospitals in Mississippi and in Birmingham provide cancer patients with alternatives to the hospitals in Tuscaloosa.

      . DCH has the authority to enter into such an agreement pursuant to § 22-21-318(a)(12), Ala.Code 1975.

      .Section 22-21-318(a)(31), Ala.Code 1975, gives a health-care authority the following power:

      . Southeast argues that DCH has a monopoly in western Alabama because DCH operates the only two hospitals in Tuscaloosa County and the Fayette Medical Center in Fayette.

      . In its brief, Oncology Associates cites Todorov v. DCH Healthcare Authority, 921 F.2d 1438, 1441 n. 1 (11th Cir.1991), in support of the proposition that Southeast lacks standing to bring this action under § 8-1-1, Ala.Code 1975. In Todorov, the United States Court of Appeals for the Eleventh Circuit found:
      "Dr. Todorov has his office at The Neurology Clinic, P.C., a corporation of which he is the sole shareholder. He brought this [antitrust] suit in behalf of himself and the corporation. Though the district court did not reach the issue, we conclude that the corporation has no standing to sue in this matter. It is Dr. Todorov, not his corporation, who is seeking [and was denied] privileges at DCH and, thus, the relief prayed for in this case.”
      Analogously in this case, the physicians employed by Southeast seek staff privileges at DCH facilities so that they may practice their profession. Southeast, as a corporate person, may not receive staff privileges or practice medicine; therefore, under the reasoning of the Eleventh Circuit Court of Appeals in Todo-rov, Southeast would lack standing to bring this action.
      This Court, however, has not directly addressed the question of nonparty standing under § 8 — 1—1(a), Ala.Code 1975. In his special concurrence in Tomlinson v. Humana, Inc., 495 So.2d 630, 632-33 (Ala.1986)(Torbert, C.J., concurring specially), then Chief Justice Torbert considered whether a "non-party to a 'restrictive contract’ ... can state a claim under [§ 8-1-1(a), Ala.Code 1975].” In Tom-linson, Shoals Medical Laboratory had an exclusive agreement to provide pathology services to hospitals owned by Humana. For three years Tomlinson was an employee of Shoals. Shoals terminated Tomlinson, and Tomlinson then sought to continue to practice pathology at the Humana hospitals. Humana declined Tomlinson staff privileges, citing its exclusive contract with Shoals. Tomlinson brought an action against Humana under § 8-1-1, Ala.Code 1975, arguing that Huma-na’s contract with Shoals restricted his ability to practice his profession. The Court chose not to decide Tomlinson on the question of standing.
      In this case, Southeast stands one step further removed from the transaction between the hospital and its exclusive contractor than did Tomlinson. In Tomlinson, Tomlinson himself sought employment as a pathologist. In this case, Southeast does not itself seek employment or staff privileges with DCH. Southeast is merely the corporation that employs the physicians who seek staff privileges at DCH facilities.
      While this case would appear to give the Court an opportunity to discuss standing under § 8 — 1—1(a), Ala.Code 1975, we do not believe that we need to make a definitive statement about who would have standing to bring a claim under § 8-1-1 (a), Ala.Code 1975, in order to decide this case. Moreover, even were this Court to decide that Southeast as a corporation lacked standing to bring a claim under § 8-l-l(a), Ala.Code 1975, any holding as to whether the individual physicians employed by Southeast would have standing to bring a claim under § 8-1-1, Ala. Code 1975, would be dicta.


source: Caselaw Access Project

author: HARWOOD, Justice.

license: Public Domain

text:
    Ex parte PROGRESS RAIL SERVICES CORPORATION. (In re Daniel Pantoja Garcia, as dependent of Lydia Garcia, deceased; et al. v. Progress Rail Services Corporation et al.)
    1012357.
    Supreme Court of Alabama.
    June 20, 2003.

      Samuel H. Franklin and Stephen J. Rowe of Lightfoot, Franklin & White, L.L.C., Birmingham; and Charles R. Hare, Jr., of Gullahorn & Hare, P.C., Albertville, for petitioner.
    Rex W. Slate and Cathey E. Berardi of Hebson, Liddon & Slate, Birmingham; and E. Shane Hollaway of Hollaway Law Office, Guntersville, for respondents.
   HARWOOD, Justice.

By its petition for a writ of mandamus filed on September 25, 2002, Progress Rail Services Corporation (“Progress Rail”) seeks an order directing the Marshall Circuit Court to dismiss the plaintiffs’ claims against it, on the basis that the claims were barred by the exclusivity and immunity provisions of the Alabama Workers’ Compensation Act.

The tragic circumstances giving rise to the underlying action are as follows: Lydia Garcia and her husband, Daniel Pantoja Garcia, were both employees of Progress Rail, a company that, among other things, purchased old railroad cars and locomotives for scrap metal. Lydia’s and Daniel’s job responsibilities included cutting scrap metal with a cutting torch, described in the plaintiffs’ complaint as a “blow torch.” In November 2001, Progress Rail was in the process of cutting up several railroad box cars and a locomotive for scrap metal. The crew consisted of Lydia and Daniel and their supervisor, James Painter. Initially, Painter told the couple that one of the cars, which had a 4,000-gallon diesel fuel tank, would not be cut because there was fuel residue in the tank. Subsequently, however, on November 13, 2001, Painter retrieved the fuel tank and ordered Daniel and Lydia to cut it in half, apparently so that it would fit on a truck for transport. They began cutting the fuel tank, working on .opposite ends. At a point in the operation, an explosion occurred and Lydia was engulfed in flames; she died of her injuries approximately 14 days later.

It is undisputed that at the time of the incident, Lydia was an employee of Progress Rail and that her injury and resulting death were caused by an accident arising out of and in the course of her employment. Subsequently, in a separate action filed in the Marshall Circuit Court, the circuit court determined that Daniel and the couple’s three children were the “appropriate and sole dependents [of Lydia] to receive the benefits under the Alabama Workers’ Compensation Act.” Those benefits, both accrued and prospective, were declared by a judgment entered on March 13, 2002; that judgment contained the provision that “[flollowing the payment of the benefits set out herein, all obligations of [Progress Rail] to the dependents under the Alabama Workers’ Compensation Act shall cease.” Four days before that judgment was entered, Daniel and the three children, proceeding in various specified capacities (hereinafter collectively referred to as “the Garcias”), sued Progress Rail, Progress Energy Service Company, LLC, Painter, and three other of Lydia’s co-employees.

The Garcias’ five-count complaint asserted the following claims: Count I, alleging that the defendants, including Progress Rail, “intentionally and/or willfully caused the fatal injuries to the deceased,” in violation of their duty to provide her with a safe place to work; Count II, alleging that Progress Rail intentionally and willfully failed to hire, train, and/or supervise the co-employee defendants; Count III, alleging that the co-employee defendants willfully and/or intentionally controlled and/or failed to control the method and manner by which the work was performed, entitling the Garcias to recover damages against all defendants; Count IV, alleging that Daniel was entitled to recover for loss of consortium; and Count V, alleging that Lydia’s three minor dependent children were entitled to recover for loss of her services.

Progress Rail, jointly with the other defendants, filed a motion to dismiss, asserting that the various counts failed to state a claim upon which relief could be granted. Progress Rail specifically asserted that, as to it, the Garcias’ claims were barred by the exclusive-remedy provisions of the Workers’ Compensation Act, § 25-5-1 et seq., Ala.Code 1975 (hereinafter sometimes referred to as “the Act”). Progress Rail pointed out that it was undisputed that it was Lydia’s employer and that her accident and injuries occurred while she was performing the duties of her employment; that it was an employer subject to the Act; and that, in fact, it was already paying benefits to the Garcias pursuant to the Act. On August 14, 2002, after conducting a hearing on the motion, the circuit judge denied the motion. Only Progress Rail challenges that ruling in this mandamus petition.

The issue presented, as framed by the petition, the Garcias’ answer and brief, and Progress Rail’s reply brief, may be paraphrased as follows:

“Where an employee is injured, and subsequently dies, as a result of an accident arising out of and in the course of her employment, which injury and death are covered under the Alabama Workers’ Compensation Act, and her dependants receive temporary total disability benefits, medical benefits, death benefits, and burial expense benefits from the employer under the Act, may the dependents maintain a separate tort action against the employer alleging that the employer had intentionally and willfully failed to provide a safe place to work, in violation of § 25-1-1, Ala.Code 1975?”

Although the Garcias have asserted loss-of-consortium and loss-of-services claims, they do not argue those claims in their answer and brief. In fact, they argue only that the claims presented by Count I should be allowed to proceed. Even if the claims alleging loss of consortium and loss of services could otherwise be legally cognizable, they are derivative of, and dependent upon the outcome of, the direct claim arising out of Lydia’s death. Therefore, if the exclusivity provisions of the Act are applicable to the direct claim, the derivative claims are likewise subject to the exclusivity provisions. See Murdock v. Steel Processing Servs., Inc., 581 So.2d 846 (Ala.1991). Given our disposition of the direct claim, we need not separately analyze the loss-of-consortium and loss-of-services claims.

Various sections of the Code of Alabama 1975 are pertinent to a proper analysis of the issue presented by this petition. Section 25-l-l(a), the first section of Article 1 of Chapter 1 of Title 25, “Industrial Relations and Labor,” reads:

“(a) Every employer shall furnish employment which shall be reasonably safe for the employees engaged therein and shall furnish and use safety devices and safeguards and shall adopt and use methods and processes reasonably adequate to render such employment and the places where the employment is performed reasonably safe for his employees and others who are not trespassers, and he shall do everything reasonably necessary to protect the life, health and safety of his employees and others who are not trespassers.”

Chapter 5 of Title 25 of the Alabama Code 1975, entitled “Workers’ Compensation” contains the following pertinent sections:

Section 25-5-1(7): “Accident. The term, as used in the phrases ‘personal injuries due to accident’ or ‘injuries or death caused by accident’ shall be construed to mean an unexpected or unforeseen event, happening suddenly and violently, with or without human fault, and producing at the time injury to the physical structure of the body or damage to an artificial member of the body by accidental means.”
Section 25-5-1(8): “Injuries by an accident arising out of and in the course of the employment. Without otherwise affecting either the meaning or interpretation of the clause, the clause does not cover workers except while engaged in or about the premises where their services are being performed or where their service requires their presence as a part of service at the time of the accident and during the hours of service as workers.”
Section 25-5-ll(a): “If the injury or death for which compensation is payable under Articles 3 or 4 of this chapter was caused under circumstances also creating a legal liability for damages on the part of any party other than the employer, whether or not the party is subject to this chapter, the employee, or his or her dependents in case of death, may proceed against the employer to recover compensation under this chapter or may agree with the employer upon the compensation payable under this chapter, and at the same time, may bring an action against the other party to recover • damages for the injury or death, and the amount of the damages shall be ascertained and determined without regard to this chapter. If a party, other than the employer, is a workers’ compensation insurance carrier of the employer or any person, firm, association, trust, fund, or corporation responsible for servicing and payment of workers’ compensation claims for the employer, or any officer, director, agent, or employee of the carrier, person, firm, association, trust, fund, or corporation, or is a labor union, or any official or representative thereof, or is a governmental agency providing occupational safety and health services, or an employee of the agency, or is an officer, director, agent, or employee of the same employer, or his or her personal representative, the injured employee, or his or her dependents in the case of death, may bring an action against any workers’ compensation insurance carrier of the employer or any person, firm, association, trust, fund, or corporation responsible for servicing and payment of workers’ compensation claims for the employer, labor union, or the governmental agency, or person, or his or her personal representative, only for willful conduct which results in or proximately causes the injury or death.... ”
Section 25-5-31: “When personal injury or death is caused to an employee by an accident arising out of and in the course of his employment, of which injury the actual or lawfully imputed negligence of the employer is the natural and proximate cause, he, or in case of death, his personal representative, for the exclusive benefit of the surviving spouse and next of kin, shall receive compensation by way of damages therefor from the employer; provided, that the injury or death was not caused by the wilful misconduct of the employee or was not due to misconduct on his part, as defined in Section 25-5-51.”
Section 25-5-52: “Except as provided in this chapter, no employee of any employer subject to this chapter, nor the personal representative, surviving spouse, or next of kin of the employee shall have a right to any other method, form, or amount of compensation or damages for an injury or death occasioned by an accident or occupational disease proximately resulting from and while engaged in the actual performance of the duties of his or her employment and from a cause originating in such employment or determination thereof.”
Section 25-5-53: “The rights and remedies granted in this chapter to an employee shall exclude all other rights and remedies of the employee, his or her personal representative, parent, dependent, or next of kin, at common law, by statute, or otherwise on account of injury, loss of services, or death. Except as provided in this chapter, no employer shall be held civilly liable for personal injury to or death of the employer’s employee, for purposes of this chapter, whose injury or death is due to an accident or to an occupational disease while engaged in the service or business of the employer, the cause of which accident or occupational disease originates in the employment. In addition, immunity from civil liability for all causes of action except those based upon willful conduct shall also extend to the workers’ compensation insurance carrier of the employer; to a person, firm, association, trust, fund, or corporation responsible for servicing and payment of workers’ compensation claims for the employer; to an officer, director, agent, or employee of the carrier, person, firm, association, trust, fund, or corporation; to a labor union, an official, or representative thereof; to a governmental agency providing occupational safety and health services, or an employee of the agency; and to an officer, director, agent, or employee of the same employer, or his or her personal representative.' Nothing in this section shall be construed to relieve a person from criminal prosecution for failure or neglect to perform a duty imposed by law.”

Progress Rail relies heavily on Ex parte McCartney Construction Co., 720 So.2d 910 (Ala.1998), which it contends is “directly on point, cannot be distinguished from the present case in any meaningful way, and is controlling.” The Garcias undertake to distinguish McCartney. The Gar-cias argue that McCartney and the cases on which it relied “do not shed any light on the issue before this Court.” The Garcias rely principally on three cases from this Court and a case decided by the Alabama Court of Civil Appeals. They cite and discuss Tittle v. Custard Insurance Adjusters, 590 So.2d 880 (Ala.1991), Lowman v. Piedmont Executive Shirt Manufacturing Co., 547 So.2d 90 (Ala.1989), Fontenot v. Bramlett, 470 So.2d 669 (Ala.1985), and Etheredge v. Flowers, 766 So.2d 842 (Ala. Civ.App.1999). They also cite, but do not discuss in any way, several other cases, which they simply list in a “string cite”: Patterson v. Augat Wiring Sys., Inc., 944 F.Supp. 1509 (M.D.Ala.1996); Jones v. Colonial BancGroup, 735 So.2d 1163 (Ala. Civ.App.1998); Stewart v. Matthews Indus., Inc., 644 So.2d 915 (Ala.1994); Raines v. Browning-Ferris Indus., Inc., 638 So.2d 1334 (Ala.Civ.App.1993); and Busby v. Truswal Sys. Corp., 551 So.2d 322 (Ala.1989). In its reply brief, Progress Rail discusses not only Tittle, Lowman, and Fontenot, but also each of the cases the Garcias cite, arguing that none of them are truly relevant to the issue at hand.

The thrust of the Garcias’ argument in response to Progress Rail’s exclusivity argument is essentially that § 25-1-1 imposes on an employer a statutory duty to provide its employees with a safe place to work and that this duty, when intentionally and willfully breached, gives rise to a cause of action unencumbered by the exclusive-remedy provisions of the Act. Progress Rail argues just the opposite, contending that when an employee suffers injury or death caused by an accident arising out of and in the course of his employment, and the injury or death is covered under the Act, the Act’s exclusivity provisions apply and control, even though the accident arose out of a failure to provide a safe place to work and regardless of whether the employer’s conduct was negligent, wanton, intentional, or willful.

Because the parties cite, but argue differently, a number of cases, including the ones already noted, we analyze the respective holdings and rationales of those cases and determine the relevance of each to the issue at hand. As noted, the Garcias cite Fontenot, Lowman, and Tittle, asserting that the holdings of those cases are to the effect “that the exclusivity provisions of the workers’ compensation act do not prohibit an act for intentional tortious conduct.” (Garcias’ brief at p. 10.) As also noted, Progress Rail relies principally on Ex parte McCartney Construction Co., supra, contending that in that case “this Court held that an employee has no cause of action against her employer for an alleged violation of Ala.Code § 25-1-1, i.e., the failure to provide a safe workplace, even where the failure is alleged to be willful.” Procedurally and factually McCartney closely parallels the present case. In McCartney, Timmons, an employee of McCartney, suffered an on-the-job injury that was covered by the provisions of the Act.

“Timmons sued McCartney and a co-employee for damages based on his injury, alleging that they had intentionally and willfully failed to provide him with a safe workplace, in violation of § 25-1-1.
“McCartney moved to dismiss the complaint on the ground that it was entitled to immunity pursuant to §§ 25-5-52 and 25-5-53 (the ‘exclusive remedy’ provisions of the Workers’ Compensation Act). The trial court denied the motion to dismiss holding that because Timmons alleged intentional and willful misconduct on the part of the defendants, McCartney was not entitled to immunity.”

720 So.2d at 910. McCartney then “petition[ed] for a writ of mandamus directing [the Etowah Circuit Court] to vacate its order denying McCartney’s motion to dismiss and, to dismiss McCartney as a defendant.” 720 So.2d at 910. This Court granted the petition and ordered the relief sought. The Court noted the pertinent language of §§ 25-5-52 and -53 and observed that § 25-5-11

“authorizes the injured employee to bring an action against ‘any party other than the employer’ who is also legally responsible for the injury, and further provides:
“ ‘(b) If personal injury or death to any employee results from the willful conduct ... of any officer, director, agent, or employee of the same employer ..., the employee shall have a cause of action against the person....’”

720 So.2d at 911.

The Court then quoted Murdock, 581 So.2d at 848, for the proposition that, in adopting the exclusivity provisions of the Act, the Legislature intended “to provide complete immunity to employers,” and “limited immunity” to co-employees, from all civil causes of action “except those based on willful conduct,” referencing § 25-5-14, Ala.Code 1975. 720 So.2d at 911. Section 25-5-14 expresses the Legislature’s finding that co-employee suits predicated upon claimed negligent or wanton conduct had become disruptive to the comprehensive workers’ compensation scheme, having a debilitating and adverse effect upon the attraction and retention of industry, and resulting in substantial cost and expense, without any reliable evidence to show that such suits had substantially improved working conditions and work practices. Therefore, the Legislature declared in § 25-5-14:

“The intent of the Legislature is to provide complete immunity to employers and limited immunity to officers, directors, agents, servants or employees of the same employer and to the workers’ compensation insurance carrier and compensation service companies' of the employer or any officer, director; agent, servant or employee of such carrier or company and to labor unions and to any official or representative thereof from civil liability for all causes of action except those based on willful conduct and such immunity is an essential aspect of the workers’ compensation scheme.”

(Emphasis supplied.)

Section 25-5-14 complements § 25-5-11, which provides in subsection (a), “If the injury or death for which compensation is payable ... was caused under circumstances also creating a legal liability for damages on the part of any party other than the employer, ... the employee, or his or her dependents in case of death, may proceed against the employer to recover compensation,” and at the same time may proceed against the third party. Section 25-5-11 goes on to provide, among other things, however, that if the third party is a co-employee, the third-party action can proceed only if the injury or death resulted “from the willful conduct” of the co-employee. Obviously, by reaffirming the “complete immunity” for employers, while simultaneously providing a “limited immunity” to various third parties, including co-employees, the Legislature evidenced a carefully calibrated intent to preserve to employers the immunity and exclusivity of remedy declared in § 25-5-52 and § 25-5-53. The McCartney Court also quoted the following from Padgett v. Neptune Water Meter Co., 585 So.2d 900, 901 (Ala.1991):

“ ‘In the recent case of Johnson v. Asphalt Hot Mix, 565 So.2d 219 (Ala. 1990), this Court stated that § 25-5-11, Ala.Code 1975, does not provide an action against an employer. Section 25-5-11(a) provides that actions may be maintained against those parties that may be jointly liable with the employer, provided that if the other party is a coemploy-ee, then his actions in order to give rise to liability, must be willful. Section 25-5-11 does not effect the immunity provided by §§ 25-5-52 and 25-5-53.’ ”

720 So.2d at 911.

The McCartney Court concluded its explanation of its rationale by citing Powell v. United States Fidelity & Guaranty Co., 646 So.2d 637 (Ala.1994). In Powell, two employees of Owens Plating Company sued three co-employees, alleging, among other things, that the employer had delegated, in material portion, to the co-employees its duty under § 25-1-1 to provide a safe workplace, and that the co-employees had negligently and/or wantonly breached that duty. The employer, which provided workers’ compensation coverage for the on-the-job injuries, was not sued. The trial court granted the co-employees’ motion to dismiss as to that particular claim; this Court affirmed. The Powell Court pointed out that “[sjection 25-1-1 is a general industrial relations and labor statute that establishes an employer’s duty to provide a safe workplace for its employees, and it has long formed the basis for co-employee liability.” 646 So.2d at 638. The Court acknowledged that “[bjefore 1985, co-employees who negligently and/or wantonly failed to provide a safe working condition could be civilly liable under 25-1-1 for personal injuries arising from their negligence,” but that in 1985 the Alabama Legislature passed the Act subsequently codified into § 25-5-11 and § 25-5-53 Those provisions prohibit actions against co-employees based on claims of negligence or wantonness, allowing co-employee liability “only for injuries that are intentionally or willfully caused by the co-employee.” 646 So.2d at 638.

Pertinent to the present case, the co-employees argued in Powell “that § 25-5-11 and § 25-5-53 are separate from § 25-1-1 and have not abrogated the cause of action based on negligent failure to maintain a safe workplace under § 25-1-1.” 646 So.2d at 639. This Court rejected that argument, reasoning that it was accurate to say only that the exclusivity provisions of § 25-5-53 and § 25-5-11 did not preclude a cause of action against a co-employee under § 25-1-1 when the claim involved allegations of “willful or intentional” acts or omissions. Because the Powell plaintiffs alleged only a negligent or wanton breach by their co-employees of the duty allegedly delegated to them to provide a safe workplace, this Court held that the trial court’s dismissal of the claim was appropriate. Thus, this Court refused to accept the plaintiffs’ argument that breach of the duty imposed by § 25-1-1 to provide a safe workplace gave rise to a cause of action that was exempt from the limiting provisions of §§ 25-5-11 and 25-5-53. The Court reasoned that § 25-1-1 was subject to the exclusivity provision of § 25-5-53, as qualified by the § 25-5-11 exemption for co-employee actions asserting an injury “intentionally or willfully caused by the co-employee.” 646 So.2d at 638.

The Garcias attempt to distinguish McCartney on the basis that the McCartney Court “relied upon § 25-5-11,” whereas “Garcia [the collective reference used by the plaintiffs] does not support his claims against Progress Rail on § 25-5-11, Ala.Code (1975); instead, he supports said claims on § 25-1-1, Ala.Code (1975).” (Garcias’ brief at pp. 15-16.) We cannot agree with that narrow reading of McCartney. The question before the McCartney Court was whether the injured employee could maintain an action against his employer based on allegations that it “had intentionally and willfully failed to provide [the employee] with a safe workplace, in violation of § 25-1-1.” 720 So.2d at 910. The Court there relied on § 25-5-11, in conjunction with § 25-5-53, but for the purpose of concluding that the interrelationship of the provisions of those sections with the provisions of § 25-1-1 would not allow recognition of a cause of action under § 25-1-1 totally independent of, and outside of the reach of, §§ 25-5-11 and 25-5-53.

The Garcias also argue that the two cases McCartney relied on, Murdock and Padgett, supra, fail to “shed any light on the issue before this Court.” (Garcias’ brief at p. 19.) They point to the fact that Murdock, which held that the exclusivity provision of § 25-5-53 barred an action for loss of consortium by a dependent spouse, did not involve a claim of intentional and/or willful conduct, and the fact that Padgett merely held that an employer whose employee was injured during and in the course of his employment, and sued the employer for workers’ compensation benefits, could not also maintain a separate action against the employer based on a theory of respondeat superior liability for the actions of co-employees who allegedly intentionally caused the employee’s injury. As noted, however, the Padgett Court held that the claims against the employer based on respondeat superior were barred by the doctrine of immunity set forth in § 25-5-52. The Court’s exact holding was that “[the employee] has pursued his claim for compensation from [the employer] through a workers’ compensation action; he cannot maintain a separate action based upon re-spondeat superior to impose civil liability upon the employer for injuries compensa-ble under the workers’ compensation act.” 585 So.2d at 901.

Progress Rail also quotes the following passage from this Court’s opinion in Ex parte Shelby County Health Care Authority, 850 So.2d 332, 338 (Ala.2002):

“Sections 25-5-52 and -53, Ala.Code 1975, are unambiguous in their explicit limitation: the Act is the exclusive remedy when an employee is injured in an accident proximately resulting from, and that occurred while the employee was engaged in, the actual performance of the duties of his. or her employment.”

Six of the nine Justices concurred in the portion of the opinion quoted above; one Justice concurred specially, apparently, in the process, concurring in that portion of the opinion; and two Justices concurred only in the result of the opinion. Justice Lyons, concurring in that portion of the opinion, but dissenting as to another portion of it, succinctly stated his understanding of the following principle, equally applicable to the case at hand:

“In the context where the employee’s claim is covered by the Act, this Court has held that the employee does not have a remedy in tort against the employer, regardless of whether the conduct of the employer is alleged to be intentional and willful. This is so because § 25-5-11, the savings provision of the Act permitting actions arising from intentional and willful conduct, is limited to actions against co-employees. See Ex parte McCartney Constr. Co., 720 So.2d 910 (Ala.1998).”

850 So.2d at 341 (Lyons, J., concurring in part and dissenting in part). In the final analysis, however, Justice Lyons considered McCartney to be distinguishable from the situation presented in Shelby County Health Care, because in McCartney the employee’s injury was covered by the provisions of the Act, whereas the injuries suffered by the employee in Shelby County Health Care were not covered under the Act.

The Garcias’ view of the import of Shelby County Health Care is as follows: In that case the issue presented was, in the words of the Garcias, “whether an employee who fell asleep while driving home from work [after working closely connected dou'ble shifts] can sustain a claim for, among other things, negligence and wantonness under § 25-1-1, Ala.Code (1975).” (Garci-as’ brief at p. 17.) Thus, say the Garcias, this Court “was presented with an opportunity to explicitly state that an employee has no cause of action against his or her employer under § 25-1-1, but it did not.” (Garcias’ brief at p. 17.) The Garcias argue that, because the Court disposed of Shelby County Health Care on a different basis, it implicitly recognized the viability of such a cause of action.

The actual pertinent holdings in Shelby County Health Care were (1) that the employee’s injuries sustained in the automobile accident were “not covered under the Act”; and (2) that because the employee’s injuries were not covered under the Act, the employee was not precluded by the exclusivity provisions of §§ 25-5-52 and -53 from bringing a tort claim against the employer. The Court based its conclusion on the fact that § 25-5-52 provides immunity to an employer as to an injury to an employee occasioned by accident proximately resulting from “and while engaged in the actual performance of the duties of his or her employment,” and § 25-5-53 bars an employee from bringing an action against an employer for injury “due to an accident ... while engaged in the service of business of the employer.” Because the Court held that, under the particular circumstances presented in that case, the employee’s injuries did not occur while she was engaged in the actual performance of the duties of her employment, neither § 25-5-52 nor § 25-5-53 prohibited her from bringing a tort action against her employer for injuries arising from the automobile accident. In Shelby County Health Care, the employer, attempting to position itself to avail itself of the exclusivity provisions of §§ 25-5-52 and -53, argued that the employee’s injuries were covered by the Act. Thus, this Court’s holding that the employee’s injuries were not covered under the Act mooted any discussion of the exclusivity provisions of the Act visa-vis the duty imposed on an employer pursuant to § 25-1-1 to maintain a safe workplace. Consequently, we do not agree with the Garcias’ analysis that implicit in the approach taken by the Court in Shelby County Health Care is a recognition that a tort claim for “failure to provide a safe place to work” might otherwise have been viable against the employer.

As earlier noted, the Garcias cite and briefly discuss Tittle, Lowman, and Fonte-not in support of their contention that Alabama caselaw holds “that the exclusivity provisions of the workers’ compensation act do not prohibit an action for intentional tortious conduct” (Garcias’ brief at p. 10). Reviewing those cases chronologically, we find them to stand for the following propositions, as pertinent to the present case.

In Fontenot, decided in 1985, an employee, injured under circumstances bringing her within the coverage of the Act, sued several defendants, including a co-employee who, she alleged, voluntarily assumed the § 25-1-1 duty of maintaining a safe workplace or to whom it had been delegated. The employer was not joined as a defendant. This Court pointed out that the term “employer” is specifically defined in § 25 — 1—1(c)(1) to include any “ ‘agent, manager, representative, foreman, or other person having control or custody of any employment, place of employment or of any employee,’ ” 470 So.2d at 672, and that Alabama had recognized the right of an employee to sue a co-employee for negligently failing to carry out his individually delegated or assumed duty to provide a safe workplace. Therefore, the Court held, the action could proceed against the co-employee because he was not entitled, as he had contended, “to the immunity provided to their employer, as a matter of law, by the Workmen’s Compensation Act, [Ala.] Code 1975, § 25-5-11.” 470 So.2d at 673. (The action in Fontenot was filed before the 1985 amendment to § 25-5-11 limiting co-employee exposure to suit, discussed in Powell, supra.)

As the Garcias point out in their answer and brief, the Fontenot Court did quote the following statement from an opinion by a Justice concurring in the result in Fireman’s Fund American Ins. Co. v. Coleman, 394 So.2d 334 (Ala.1980):

“ ‘[C]ertain duties owed by an employer to his employees are so inherent and fundamental to the employer/employee relationship that the employer cannot escape liability to an injured employee resulting from its breach by delegating its performance to other employees and then seeking refuge in the “fellow servant” defense. It does not mean the duty in fact cannot be delegated.’ ”

470 So.2d at 673. This statement was made in the context of noting that a co-employee could be personally hable for his own, albeit delegated or assumed, duty to provide a safe place to work. The Justice writing specially in Coleman also explained that “ ‘[o]nly where the employer, except for employer immunity, owes a duty of due care,’ ” and that duty is assumed by a co-employee who breaches it through personal fault, “ ‘can liability be imposed upon the co-employee.’ ” Fontenot, 470 So.2d at 673 (emphasis supplied). After all is said and done, Fontenot explicitly referenced the immunity the employer would enjoy with respect to a duty to maintain a safe workplace, but held that that immunity did not extend to a culpable co-employee to whom that duty had been delegated or by whom the duty had been assumed.

In Lowman, decided in 1989, an injured employee sued her employer and a co-employee on theories of fraud, conspiracy to defraud, and the tort of outrage, arising out of the co-employee’s coercive conduct, in furtherance of the employer’s interests, in refusing to allow the injured employee to seek workers’ compensation benefits for her on-the-job injury and threatening her, while she was still hospitalized from her injury, with being stuck with a big medical bill if she did not “file her disability claim as for an off-the-job injury.” 547 So.2d at 92. The trial court granted the defendants’ motion for a summary judgment predicated on the exclusive-remedy provisions of the Act. On appeal, this Court concluded that “[t]he main issue here presented is how far the exclusivity provisions of the [Workers’] Compensation Act extend.” 547 So.2d at 92. Concluding that the tortious conduct of the defendants did not qualify as an “accident” compensable under the Act, the Court next concluded that because that conduct was “not covered” by the Act, the “exclusivity provisions of the Act are irrelevant to the present causes of action.” 547 So.2d at 94.

“It logically follows that if an accident is not compensable because it is outside the coverage of the Act, then the exclusive remedy provisions of the Act are also inapplicable. Thus, an employer is protected from tort liability only as to injuries expressly covered by the language of the Act.”

547 So.2d at 93.

It is in that context that we must read the two excerpts from the Lowman opinion the Garcias quote representing the essential holding of the case: “[T]he exclusive remedy provisions were not designed to shield an employer ... from the entire field of tort law,” and “intentional tortious conduct ... committed beyond the bounds of the employer’s proper role is actionable.” 547 So.2d at 92, 95. Immediately following the first of those quoted statements in the opinion, however, is the statement that “[tjhese [exclusive-remedy] provisions apply only to limit the liability of an employer ... to the statutorily prescribed claims for job-related injuries.” 547 So.2d at 92. Accordingly, while recognizing the immunity an employer enjoys with respect to an employee’s on-the-job injury, the Court declared the principle later echoed in Shelby County Health Care, supra, that the exclusivity provisions do not apply if an employee’s injury falls outside the coverage of the Act. As Lowman declared, “an employer is protected from tort liability only as to injuries expressly covered by the language of the Act.” 547 So.2d at 93. Therefore, the statement in Lowman that “intentional tortious conduct ... committed beyond the bounds of the employer’s proper role is actionable,” 547 So.2d at 95 (emphasis supplied), does not support the different proposition for which the Garcias cite it — that intentional tortious conduct committed within the bounds of the employer’s proper role is actionable.

Finally, in Tittle, decided in 1991,' an employee who had sustained a work-related injury sued two insurance adjusting companies and an employee of one of the companies, asserting various claims predicated on alleged negligence, wantonness, and intentional misconduct. The trial court entered a partial summary judgment for one of the companies and its employee, except as to a claim asserting the tort of outrage. The trial court entered a summary judgment for the other company, Custard Insurance Adjusters, on the plaintiffs claim that Custard had undertaken “to ensure that certain rehabilitation services were provided to her following an on-the-job injury,” 590 So.2d at 880, but had breached its duties in that regard. It is to be noted that neither the employer nor its workers’ compensation carrier were sued in Tittle, it being explicit in the opinion that the injury was accepted as a covered injury under the Act and that benefits were provided to the injured employee. Accordingly, no issue of employer immunity was involved; the Court was dealing simply with a third-party action against an adjusting company that the workers’ compensation carrier had hired to act on its behalf in overseeing the provision of certain benefits under the Act.

The Garcias quote from Tittle the proposition that the Act should not be an “ ‘impervious barrier, insulating a wrongdoer from the payment of just and fair damages for intentional tortious acts.’ ” 590 So.2d at 881 (quoting Lowman, 547 So.2d at 94). This incomplete quotation is somewhat misleading, inasmuch as the full statement in Tittle, which is itself a quotation from Lowman, quoting in turn a federal district court case, is as follows: “ ‘[T]he Act should not be an impervious barrier, insulating a wrongdoer from the payment of just and fair damages for intentional tor-tious acts only very tenuously related to workplace accidents.’ ” Lowman, 547 So.2d at 94 (quoting Carpentino v. Transport Ins. Co., 609 F.Supp. 556, 562 (D.C.Conn.1985)); Tittle, 590 So.2d at 881. (Emphasis supplied.) Thus, because the intentional tortious acts asserted against Custard were “only very tenuously related to [the employee’s] workplace aceident[ ],” the exclusivity provision of § 25-5-52 (being the only section of the Act quoted in the opinion) would not provide protection to it as a nonemployer, third party.

As noted, in addition to citing and briefly discussing Tittle, Lowman, and Fonte-not, the Garcias provide a “see also” string cite of five other cases. The Garcias do not discuss what those cases held, or how they presumably further support the Gar-cias’ contention that “[t]he Courts in this State have held that exclusivity provisions of the Workers’ Compensation Act do not prohibit an action for intentional tortious conduct.” (Garcias’ brief at p. 10.) Nonetheless, we have read each of the cases cited, and none are relevant to the immunity/exclusive-remedy issue presented in this case. Specifically, those cases involve either alleged wrongful conduct clearly outside of the scope of the Act, or a claim against a nonemployer, or a claim for benefits under the Act, as opposed to a separate civil action.

The Garcias also argue that the plain meaning of the language of § 25-1-1 establishes “that an employer has a statutory duty to provide his or her employees with a safe place to work, which if breached, stands to reason [ (sic) ] that the employee has a cause of action against said employer for such breach,” citing Shelby County Health Care. (Garcias’ brief at p. 14.) Of course, Shelby County Health Care stands only for the proposition that the immunity and exclusivity provisions of the Act pose no barrier to a civil tort action in a case where the underlying injury is not covered under the Act. In the present case, Lydia’s injury and resulting death were clearly covered under the Act, and compensation and other benefits due her dependents under the Act have been duly provided to and accepted by them.

Finally, the Garcias cite Etheredge v. Floivers, 766 So.2d 842 (Ala.Civ.App.1999). Their reading of Etheredge is that the plaintiff in that case “sued her former employer, as well as several of her co-employees, for, among other things, failure to provide her with a safe place to work.” (Garcias’ brief at p. 14.) They then quote from Etheredge the statement that “the exclusivity provisions of the Workers’ Compensation Act do not preclude a cause of action under § 25-1-1, Ala.Code 1975, for failure to provide a safe workplace” and the statement that ‘“the exclusivity provisions have limited this cause of action under § 25-1-1 to only those instances where the breach of this duty is willful or intentional.’ ” 766 So.2d at 846 (quoting Powell v. United States Fid. & Guar. Co., 646 So.2d at 639). Our own close reading of Etheredge reveals some ambiguity as to just what claims were made against what parties, and, thus, some ambiguity of the resulting contours of that decision. The introductory paragraph in Etheredge states:

“Melanie Etheredge sued her former employer, Dorsey Trailer Company, Inc. (‘Dorsey’), for workers’ compensation benefits and alleged a claim of retaliato ry discharge, alleging that Dorsey had terminated her employment because she had filed a claim for workers’ compensation benefits. She also sued Marty Flowers, her line supervisor at Dorsey; Jimmy Hudson, the general supervisor of Etheredge’s shift; Buddy Hall, who worked in personnel and human resources at Dorsey; and Doug Allgood, the former general manager at Dorsey, claiming that they and Dorsey had failed to provide her with a safe place to work.”

766 So.2d at 843 (emphasis supplied).

It is unclear from that explanation whether Etheredge sued Dorsey seeking only workers’ compensation benefits and damages for retaliatory discharge, and sued the named co-employees only for failure to provide her with a safe place to work, or whether she also sued Dorsey along with the co-employees for a failure to provide her with a safe workplace. The opinion goes on to explain that “the trial court entered a summary judgment in favor of the defendants on the claims alleging a retaliatory discharge and a failure to provide a safe workplace.” 766 So.2d at 843. Because the retaliatory-discharge claim was asserted only against Dorsey, this reference to a summary judgment in favor of “the defendants” as to the retaliatory-discharge claim only adds to the ambiguity, and the reference following it to a claim for a failure to provide a safe workplace therefore does not resolve the ambiguity. Pertinent to the claim in the present action, the Etheredge opinion continues with the statement that “Etheredge ... contends that the trial court erred in entering a summary judgment in favor of the defendants on her claim alleging a failure to provide a safe workplace.” 766 So.2d at 845. Again, we cannot be sure whether this is a reference to all five defendants, including Dorsey, or just to the four co-employee defendants. Assuming, however, that the opinion intends to include Dorsey, the employer, in its reference to the safe-workplace claim, we find the following statement in the opinion to be in error:

“Despite the defendants’ contention to the contrary, the exclusivity provisions of the Workers’ Compensation Act do not preclude a cause of action under § 25-1-1, Ala.Code 1975, for failure to provide a safe workplace. Powell v. United States Fidelity & Guaranty Co., 646 So.2d 637, 639 (Ala.1994). ‘However, the exclusivity provisions have limited this cause of action under § 25-1-1 to only those instances where the breach of this duty is willful or intentional.’ Id.”

766 So.2d at 846. To the extent that this statement in Etheredge relies on Powell as authority for the proposition that the exclusivity provisions of the Act do not preclude a cause of action under § 25-1-1 against the employer where the breach of the duty is willful or intentional, that reliance is misplaced.

As previously noted, the employee in Powell sued an insurance carrier and three co-employees, alleging that the § 25-1-1 duty to provide the employee with a safe place to work had been delegated to the co-employees and that the co-employees had negligently and/or wantonly breached those delegated duties. The employer was not sued. Thus, the sentence quoted in Etheredge from Powell — “the exclusivity provisions have limited this cause of action under § 25-1-1 to only those instances where the breach of this duty is willful or intentional” — was directed in Powell only toward actions against co-employees. That was the entire thrust of the analysis of the portions of the Powell opinion leading up to that statement. Powell was not making the more global statement, which the Garcias seek to impute to it, that an employer, as well as co-employees, could be sued for a violation of the § 25-1-1 duty where the breach of the duty was willful or intentional. Powell grounded the statement on the fact that “the exclusivity provisions have limited” the cause of action under § 25-1-1 to only those instances where the breach of duty was willful or intentional. The “exclusivity provisions” referenced, § 25-5-53 and § 25-5-11, “limited” liability only as to various parties “other than the employer.” Therefore, Powell’s reference to “the exclusivity provisions” that “have limited” the cause of action under § 25-1-1 would have a field of operation only in an action against a co-employee. Etheredge bases its own statement quoted above only on Powell.

Inexplicably, the Etheredge opinion takes no note whatsoever of our opinion in McCartney, decided only one year previously. (That omission increases our uncertainty about whether Etheredge actually involved a claim directly against the employer, as opposed to just the co-employees, for the breach of the duty to provide an employee with a safe place to work.) If Etheredge is to be understood as addressing and allowing a safe-workplace claim made directly against the employer in a situation where the employee’s injury is covered under the Act, it is incompatible with McCartney and to that extent is hereby overruled.

In conclusion, we cannot agree with the Garcias that it “stands to reason” that, because the Legislature has imposed a statutory duty on employers to provide their employees with a safe place to work, an injured employee can maintain an action against an employer for a breach of that duty even though the injury is fully covered under the Act, with that action to be exempt from what this Court has declared to be the “complete immunity” provided to an employer for such injuries. It certainly can be argued that the Legislature manifested an entirely different intent in 1992 when it completely rewrote § 25-5-11 so as to specifically provide that various parties, exclusive of the employer, could be sued for willful conduct. The Legislature’s so specifying as to various nonemployer parties, but providing no corresponding “limited” immunity for employers that would modify the “complete” immunity employers had previously been declared to enjoy, suggests that the Legislature intended to leave unaltered the nature of employer immunity.

Accordingly, consistent with McCartney, we hold that Progress Rail is entitled to the relief it seeks. Therefore, its petition for the writ of mandamus is granted and the trial court is directed to enter an order dismissing Progress Rail as a party to the action.

PETITION GRANTED; WRIT ISSUED.

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

MOORE, C.J., dissents.

      . In 1992 the Alabama Legislature passed Act No. 92-537, Ala. Acts 1992, amending the Alabama Workers’ Compensation Act. These Code sections were among the sections amended by Act No. 92-537.

      . In 1992, a year after Tittle was decided, a complete revision of § 25-5-11 provided certain limited immunities for nonemployers, including a party that "is a workers' compensation insurance carrier of the employer or any person, firm, association, trust, fund, or corporation responsible for servicing and payment of workers’ compensation claims for the employer ...” that could be liable to an injured employee "for only willful conduct which results in or proximately causes the injury or death."


author: YATES, Presiding Judge. MURDOCK, Judge,

text:
    John P. ROBERTS v. Deloris Lee ROBERTS.
    2020371.
    Court of Civil Appeals of Alabama.
    June 27, 2003.

      William N. Dunn of Aaron & Dunn, LLC, Birmingham, for appellant.
    Horace H. Nation III, Jasper; and Brian S. Royster of Gustin & Royster Attorneys at Law, P.C., Jasper, for appellee.
   YATES, Presiding Judge.

AFFIRMED. NO OPINION.

See Rule 53(a)(1) and (a)(2)(F), Ala. R.App. P.; Creel v. Creel, 871 So.2d 827 (Ala.Civ.App.2002); Stack v. Stack, 646 So.2d 51 (Ala.Civ.App.1994); Ayers v. Ayers, 643 So.2d 1375 (Ala.Civ.App.1994); Parcus v. Parcus, 615 So.2d 75 (Ala.Civ.App.1992); and Hill v. Hill, 562 So.2d 255 (Ala.Civ.App.1990).

CRAWLEY, THOMPSON, and PITTMAN, JJ., concur.

MURDOCK, J., dissents.

MURDOCK, Judge,

dissenting.

As indicated by some of the cases cited in the majority’s no-opinion affirmance, the general purpose of a finding of contempt is to procure prompt compliance with court orders and judgments, Parcus v. Parcus, 615 So.2d 75 (Ala.Civ.App.1992), and the inability to pay court-ordered support payments is a complete defense to a finding of contempt. Watts v. Watts, 706 So.2d 749 (Ala.Civ.App.1997); Hill v. Hill, 562 So.2d 255 (Ala.Civ.App.1990). Moreover, if a husband can present evidence that his failure to pay is not due to contumacy, but due to an inability to pay the arrearage, the burden then shifts to the wife to prove beyond a reasonable doubt that the husband has the ability to pay the ordered amount. Summers v. Summers, 661 So.2d 243 (Ala.Civ.App.1995); Morgan v. Morgan, 582 So.2d 1147, 1149 (Ala.Civ.App. 1991); and Sewell v. Butler, 375 So.2d 800, 801-02 (Ala.Civ.App.1979). Based on my review of the testimony presented, I must conclude that the wife did not present sufficient evidence in this case to justify a conclusion on the part of the trial court that this standard was met and that the husband should be incarcerated. I therefore respectfully dissent.


author: YATES, Presiding Judge. PITTMAN, Judge, dissenting.

text:
    Greg PHILLIPS, as president of Copy Fax, Inc. v. WEST MORGAN HIGH SCHOOL and Bruce Kimbrell, as principal of West Morgan High School.
    2020370.
    Court of Civil Appeals of Alabama.
    June 27, 2003.
    Melvin Hasting, Cullman, for appellant.
    Donald B. Sweeney, Jr., and Hope T. Stewart of Bradley Arant Rose & White, LLP, Birmingham, for appellees.
   YATES, Presiding Judge.

AFFIRMED. NO OPINION.

See Rule 53(a)(1) and (a)(2)(F), Ala. R.App. P.; Donoghue v. American Nat’l Ins. Co., 838 So.2d 1032 (Ala.2002); and Panther Oil & Grease Mfg. Co. v. Blount County Bd. of Educ., 41 Ala.App. 434, 134 So.2d 220 (1961).

CRAWLEY and THOMPSON, JJ., concur.

PITTMAN and MURDOCK, JJ., dissent.

PITTMAN, Judge, dissenting.

The standard of review an appellate court must apply to a judgment granting a motion to dismiss filed pursuant to Rule 12(b)(6), Ala. R. Civ. P., is relatively strict:

“On appeal, a dismissal is not entitled to a presumption of correctness. Jones v. Lee County Commission, 394 So.2d 928, 930 (Ala.1981); Allen v. Johnny Baker Hauling, Inc., 545 So.2d 771, 772 (Ala.Civ.App.1989). The appropriate standard of review under Rule 12(b)(6)[, Ala. R. Civ. P.,] is whether, when the allegations of the complaint are viewed most strongly in the pleader’s favor, it appears that the pleader could prove any set of circumstances that would entitle her to relief. Raley v. Citibanc of Alabama/Andalusia, 474 So.2d 640, 641 (Ala.1985); Hill v. Falletta, 589 So.2d 746 (Ala.Civ.App.1991). In making this determination, this Court does not consider whether the plaintiff will ultimately prevail, but only whether she may possibly prevail. Fontenot v. Bramlett, 470 So.2d 669, 671 (Ala.1985); Rice v. United Ins. Co. of America, 465 So.2d 1100, 1101 (Ala.1984). We note that a Rule 12(b)(6) dismissal is proper only when it appears beyond doubt that the plaintiff can prove no set of facts in support of the claim that would entitle the plaintiff to relief. Garrett v. Hadden, 495 So.2d 616, 617 (Ala.1986); Hill v. Kraft, Inc., 496 So.2d 768, 769 (Ala. 1986).”

Nance v. Matthews, 622 So.2d 297, 299 (Ala.1993).

The majority takes the position that Phillips is precluded from recovering from the school because there was no approval of the contract that is the basis of Phillips’s complaint by the board of education. Phillips’s complaint and the defendant’s motion to dismiss do not indicate whether the county board of education had approved a contract between Phillips and West Morgan High School and/or Bruce Kimball, the principal of that school. Under the standard set out by our supreme court in Nance, there is a “set of circumstances that would entitle [Phillips] to relief” 622 So.2d at 299. That set of circumstances might be, for instance, that the county board of education had, in fact, approved the contract that is the basis of Phillips’s complaint. See § 16-8-40, Ala. Code 1975 (providing that a county board of education has the power to contract and to sue); Palmer v. Perry County Bd. of Educ., 496 So.2d 2, 4 (Ala.1986) (noting that the right to sue carries with it the right to be sued and indicating that a county board of education may be sued on its contracts). Because Phillips could prevail on his claim if the evidence supports those circumstances, I believe that Phillips stated a claim upon which relief could be granted and that the motion to dismiss was improperly granted by the trial court. Therefore, I respectfully dissent.

MURDOCK, J., concurs.