author: SELLERS, Justice.

text:
    EX PARTE DOW CORNING ALABAMA, INC., et al.
    (In re Alabama Electric Company, Inc., of Dothan and National Trust Insurance Company v. Dow Corning Alabama, Inc., et al.)
    11160028
    Supreme Court of Alabama.
    September 1, 2017
    John W. Dodson and F. Tucker Burge, Jr., of Dodson Gregory, LLP, Birmingham, for petitioners.
    F. Lane Finch, Jr., and Brian C. Richardson of Swift, Currie, McGhee & Hiers, LLP, Birmingham; and Alan C. Livingston of Lee, Livingston, Lee & Nichols, PC, Dothan, for respondent.
   SELLERS, Justice.

Dow Corning Alabama, Inc., Dow Corning Corporation, Rajesh Mahadasyam, Fred McNett, Zurich American Insurance Company ("Zurich"), and National Union Insurance Company of Pittsburgh, PA ("National Union"), petition this Court for a writ of mandamus directing the trial court to transfer the underlying declaratory-judgment action to the Montgomery Circuit Court pursuant to § 6-3-21.1, Ala. Code 1975, the forum non conveniens statute. We deny the petition.

Facts

Alabama Electric Company, Inc., of Dothan ("Alabama Electric") is an Alabama corporation with its principal place of business in Houston County. Dow Corning Alabama is a Delaware corporation with its principal place of business in Montgomery County. Dow Corning Alabama hired Alabama Electric, an independent contractor, to perform the electrical installation of a vacuum system at Dow Corning Alabama's facility in Montgomery. The master construction contract ("the master contract") between the parties includes the following indemnity provision:

"[Section 15.01] INDEMNITY-[Alabama Electric] assumes all risk and liability for provision of the Work and agrees to defend, indemnify and hold harmless [Dow Corning Alabama], its subsidiaries and affiliated companies and their officers, directors, agents, employees and assigns (each 'Indemnified Party'), from and against all claims, including claims of bodily injury or death, all damages, losses and expenses, including attorneys' fees and expenses, arising out of or resulting from the negligent acts or omissions of [Alabama Electric], [its] employees, representatives subcontractors and independent contractors under [Alabama Electric's] supervision and control while on [Dow Corning Alabama's] premises or traveling to or from [Dow Corning Alabama's] premises for the purpose of performing Work, regardless of whether caused in part by [Dow Corning Alabama]."

(Emphasis added.) Section 16.02 of the master contract requires Alabama Electric to maintain "Commercial General Liability Insurance ... providing standard coverage including, but not limited to, insurance for any and all public liability including bodily injury, property damage, personal injury, or advertising injury to others, arising from or related to [Alabama Electric's] performance under this agreement." (Emphasis added.) Section 16.02 of the master contract also states that "[Dow Corning Alabama] shall be added as an additional insured for the coverages listed in b. [i.e., commercial general-liability insurance] and c. [i.e., automobile-liability insurance] above, with respect to occurrences arising out of [Alabama Electric's] negligent acts or omissions." (Emphasis added.) In accordance with the master contract, Alabama Electric's insurer, National Trust Insurance Company ("National Trust"), issued to Alabama Electric a commercial general-liability insurance policy ("the National Trust policy") for the period March 31, 2011, through March 31, 2012.

On August 1, 2011, Scottie Blue, an employee of Alabama Electric, was injured while working at Dow Corning Alabama's Montgomery facility. On March 28, 2013, Blue filed a personal-injury action in the Montgomery Circuit Court ("the Montgomery lawsuit"), naming as defendants Dow Corning Alabama, Dow Corning Corporation, Rajesh Mahadasyam, and Fred McNett ("the Dow defendants"). The Dow defendants tendered their request for defense and indemnity of the Montgomery lawsuit to Alabama Electric and National Trust, both of whom denied coverage.

On April 28, 2014, Zurich and National Union (hereinafter referred to collectively as "the Dow insurers") settled the Montgomery lawsuit through mediation, and the case was ultimately dismissed.

On May 9, 2014, Alabama Electric and National Trust filed an action in the Houston Circuit Court seeking certain declarations concerning their duties and obligations under the master contract and/or the National Trust policy regarding the settlement. Alabama Electric and National Trust argued primarily that the indemnity provision of the master contract required them to defend and indemnify only those claims based on Alabama Electric's negligence. Alabama Electric emphasized that all the claims asserted by Blue in his complaint were based on the alleged wrongful acts or omissions of the Dow defendants. Alabama Electric and National Trust subsequently amended their complaint to add the Dow insurers based on the Dow defendants' assertion that they had assigned to the Dow insurers their legal rights to sue Alabama Electric and National Trust.

On November 3, 2014, the Dow defendants moved to transfer the declaratory-judgment action from Houston County to Montgomery County pursuant to the interest-of-justice prong of § 6-3-21.1. In their motion to transfer, the Dow defendants argued that Montgomery County had a "much stronger connection" to the declaratory-judgment action because Blue's accident occurred in Montgomery County, Montgomery County was the site of Alabama Electric's alleged negligent conduct, and Montgomery County is where Blue filed his action. They argued that, in contrast, Houston County had little connection to the declaratory-judgment action other than being the location of Alabama Electric's principal place of business. Alabama Electric and National Trust argued in response that Houston County has a strong interest in the adjudication of their declaratory-judgment action because, they said, the issues presented are solely whether Alabama Electric owes indemnity under the master contract, which was executed in Houston County, and whether National Trust owes indemnity under its policy of insurance, which was issued in Houston County. At some point thereafter, the Dow insurers also filed a motion to transfer the action to Montgomery County, asserting the same grounds as did the Dow defendants. After considering briefs from the parties and conducting a hearing, the trial court entered an order denying the motions to transfer, concluding that the Dow defendants and the Dow insurers had failed to meet their burden of showing that the requested transfer to Montgomery County was justified, based on the interest of justice, under § 6-3-21.1. The trial court specifically determined that the claims asserted by the Dow defendants and the Dow insurers arise, if at all, from the master contract or from the National Trust policy.

The Dow defendants and the Dow insurers (hereinafter sometimes referred to collectively as "the Dow parties") then filed this petition for a writ of mandamus, requesting that this Court order the trial court to transfer the underlying declaratory-judgment action from the Houston Circuit Court to the Montgomery Circuit Court. This Court ordered answers and briefs.

Standard of Review

"The proper method for obtaining review of a denial of a motion for a change of venue in a civil action is to petition for the writ of mandamus. Lawler Mobile Homes, Inc. v. Tarver, 492 So.2d 297, 302 (Ala. 1986). 'Mandamus is a drastic and extraordinary writ, to be issued only where there is (1) a clear legal right in the petitioner to the order sought; (2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; (3) the lack of another adequate remedy; and (4) properly invoked jurisdiction of the court.' Ex parte Integon Corp., 672 So.2d 497, 499 (Ala. 1995). 'When we consider a mandamus petition relating to a venue ruling, our scope of review is to determine if the trial court abused its discretion, i.e., whether it exercised its discretion in an arbitrary and capricious manner.' Id. Our review is further limited to those facts that were before the trial court. Ex parte American Resources Ins. Co., 663 So.2d 932, 936 (Ala. 1995)."

Ex parte National Sec. Ins. Co., 727 So.2d 788, 789 (Ala. 1998).

Discussion

The Dow parties contend that the trial court exceeded its discretion in denying their motion to transfer the declaratory-judgment action to Montgomery County under the "interest-of-justice" prong of § 6-3-21.1, which provides, in pertinent part:

"With respect to civil actions filed in an appropriate venue, any court of general jurisdiction shall, for the convenience of parties and witnesses, or in the interest of justice, transfer any civil action or any claim in any civil action to any court of general jurisdiction in which the action might have been properly filed and the case shall proceed as though originally filed therein."

(Emphasis added.) "A [party] moving for a transfer under § 6-3-21.1 has the initial burden of showing that the transfer is justified, based on the convenience of the parties and witnesses or based on the interest of justice." Ex parte Masonite Corp., 789 So.2d 830, 831 (Ala. 2001) (emphasis added). In this case, it is undisputed that venue is appropriate in both Houston County, see § 6-3-7(a)(2), Ala. Code 1975 ("All civil actions against corporations may be brought ... [i]n the county of the corporation's principal office in this state ...."), and Montgomery County. "When venue is appropriate in more than one county, the plaintiff's choice of venue is generally given great deference." Ex parte Perfection Siding, Inc., 882 So.2d 307, 312 (Ala. 2003). Accordingly, this Court must determine "whether 'the interest of justice' overrides the deference due the plaintiff's choice of forum. Our inquiry depends on the facts of the case." Ex parte J & W Enters., LLC, 150 So.3d 190, 194 (Ala. 2014).

"The 'interest of justice' prong of § 6-3-21.1 requires 'the transfer of the action from a county with little, if any, connection to the action, to the county with a strong connection to the action.' Ex parte National Sec. Ins. Co., 727 So.2d [788,] 790 [ (Ala. 1998) ]. Therefore, 'in analyzing the interest-of-justice prong of § 6-3-21.1, this Court focuses on whether the "nexus" or "connection" between the plaintiff's action and the original forum is strong enough to warrant burdening the plaintiff's forum with the action.' Ex parte First Tennessee Bank Nat'l Ass'n, 994 So.2d 906, 911 (Ala. 2008). Additionally, this Court has held that 'litigation should be handled in the forum where the injury occurred.' Ex parte Fuller, 955 So.2d 414, 416 (Ala. 2006). Further, in examining whether it is in the interest of justice to transfer a case, we consider 'the burden of piling court services and resources upon the people of a county that is not affected by the case and ... the interest of the people of a county to have a case that arises in their county tried close to public view in their county.' Ex parte Smiths Water & Sewer Auth., 982 So.2d 484, 490 (Ala. 2007). The petitioners in this case are thus required to demonstrate ' "that having the case heard in [Montgomery] County would more serve the interest of justice" ' than having the case heard in [Houston] County. Ex parte First Tennessee Bank, 994 So.2d at 909 (quoting Ex parte Fuller, 955 So.2d 414, 416 (Ala. 2006) ).

Ex parte Indiana Mills & Mfg., Inc., 10 So.3d 536, 540 (Ala. 2008).

The Dow parties rely on the following three cases to support their position that the trial court was compelled to transfer the declaratory-judgment action to Montgomery County: Ex parte American Resources Insurance Co., 58 So.3d 118 (Ala. 2008) (holding that transfer to St. Clair County was not warranted under the interest-of-justice prong, even though the insured resided in St. Clair County and the insurance policy was negotiated, issued, and delivered in St. Clair County; the case did not involve issues whether policy was actually issued or whether fraud or other wrongful conduct occurred-rather, the only issue was whether the events alleged in complaint fell within coverage of the policy); Ex parte International Refining & Manufacturing Co., 67 So.3d 870 (Ala. 2011) (holding that venue for insurer's declaratory-judgment action against manufacturer was proper in county in which former employees' litigation was proceeding); and Vulcan Materials Co. v. Alabama Insurance Guaranty Ass'n, 985 So.2d 376 (Ala. 2007) (holding that venue for insurer's declaratory-judgment action was proper where insurers allegedly breached their duty to indemnify manufacturer). Based on the specific facts of this case, and for the reasons discussed below, we do not agree with the Dow parties that these cases compel the transfer of the declaratory-judgment action to Montgomery County.

Although the Dow parties rely on Ex parte American Resources, that case is actually supportive of Alabama Electric and National Trust's position opposing the motion to transfer. In Ex parte American Resources, a general contractor filed a lawsuit against its subcontractor in the Escambia Circuit Court, alleging defective construction of a condominium building in that county. The subcontractor's insurer defended the Escambia County action under a reservation of right. The insurer subsequently filed an action in the Mobile Circuit Court, seeking a judgment declaring whether there had been an "occurrence" as defined in the policy it had issued to the subcontractor. The trial court granted the subcontractor's motion to transfer the declaratory-judgment action to St. Clair County-the location of the subcontractor's principal place of business. This Court concluded that the subcontractor had failed to meet its burden of proving that transferring the case to St. Clair County would serve the interest of justice more than leaving the case in Mobile County-the location of the insurer's principal place of business. In so concluding, this Court observed that, despite the subcontractor's contentions that the insurance policy had been negotiated, issued, and delivered in St. Clair County, the insurer filed its action in Mobile County where its principal office was located and that Mobile County appeared to have as much interest in the proper resolution of a coverage dispute as did St. Clair County, i.e., "[t]he only issue is whether the events that form the basis for the Escambia County action fall within the coverage of the policy." 58 So.3d at 123. In the instant case, Alabama Electric and National Trust chose to file their action in Houston County-the county not only where Alabama Electric's principal place of business is located, but also where the master contract was negotiated and delivered and where the National Trust policy was issued and delivered. Accordingly, Houston County appears to have as much interest in the proper resolution of the indemnity dispute as does Montgomery County.

In Ex parte International Refining, the plaintiffs, former employees of a muffler plant, filed a lawsuit in the Fayette Circuit Court against, among others, the manufacturer who supplied the muffler plant with allegedly toxic chemicals. The manufacturer's insurer defended the manufacturer in the action. While the action was proceeding in Fayette County, the manufacturer's insurer filed an action in the Jefferson Circuit Court seeking a judgment that it did not have a "continuing duty" to defend the manufacturer in the Fayette County action. The manufacturer moved the trial court to transfer the insurer's declaratory-judgment action to Fayette County pursuant to § 6-3-7, Ala. Code 1975, relating to venue of actions against foreign and domestic corporations, arguing that venue was proper only in Fayette County because a substantial part of the events giving rise to the insurer's declaratory-judgment action occurred there. This Court agreed:

"The act giving rise to [the insurer's] declaratory-judgment action against [the manufacturer] is not the initiation of the contractual relationship between [the insurer] and [the manufacturer]; instead, it is [the insurer's] desire to be relieved of any obligation to defend and/or to indemnify [the manufacturer] in the [underlying] litigation. The [underlying] litigation is proceeding in the Fayette Circuit Court, and that litigation is the very litigation from which [the insurer] is seeking relief from defending [the manufacturer]. Therefore, a substantial part of the events giving rise to [the insurer's] declaratory-judgment action arose in Fayette County. Whether the remaining plaintiffs' claims in the [underlying] litigation against [the manufacturer] in the Fayette Circuit Court may be the subject of indemnification by [the insurer] is a determination to be made by the Fayette Circuit Court."

67 So.3d at 876-77. In other words, the insurer in Ex parte International Refining filed its declaratory-judgment action in the Jefferson Circuit Court, seeking to be excused from providing any further defense in the action that was already proceeding in Fayette County. In the instant case, Alabama Electric and National Trust never agreed to provide a defense for the Dow defendants in the Montgomery lawsuit. Rather, after the Dow insurers settled the Montgomery lawsuit on behalf of the Dow defendants, but prior to the settlement being finalized, Alabama Electric and National Trust filed the declaratory-judgment action in Houston County seeking a declaration that they were not obligated under the master contract either to defend or to indemnify the Dow parties. Moreover, the instant case involves the application of the interest-of-justice prong of § 6-3-21.1 and, more specifically, whether the Dow parties have met their burden of demonstrating that having the declaratory-judgment action heard in Montgomery County would better serve the interest of justice.

Finally, in Vulcan Materials, the plaintiffs filed their underlying lawsuit in California, alleging that Vulcan was liable for environmental damage at 50 sites in that state. Two of Vulcan's insurers filed insurance-coverage actions in California. Thereafter, Vulcan filed a third insurance-coverage action against the insurers in Alabama, seeking a declaration regarding the insurers' duty to defend or indemnify it in pending and future litigation in various jurisdictions. The insurers moved to dismiss Vulcan's declaratory-judgment action on forum non conveniens grounds pursuant to § 6-5-430, Ala. Code 1975, a statute making the doctrine of forum non conveniens applicable in an action arising in a foreign jurisdiction:

" Section 6-5-430, Ala. Code 1975, provides:
" 'Whenever, either by common law or the statutes of another state or of the United States, a claim, either upon contract or in tort has arisen outside this state against any person or corporation, such claim may be enforceable in the courts of this state in any county in which jurisdiction of the defendant can be legally obtained in the same manner in which jurisdiction could have been obtained if the claim had arisen in this state; provided, however, the courts of this state shall apply the doctrine of forum non conveniens in determining whether to accept or decline to take jurisdiction of an action based upon such claim originating outside this state; and provided further that, if upon motion of any defendant it is shown that there exists a more appropriate forum outside this state, taking into account the location where the acts giving rise to the action occurred, the convenience of the parties and witnesses, and the interests of justice, the court must dismiss the action without prejudice....'
"Under this statute, the trial court 'shall apply the doctrine of forum non conveniens' in determining whether to decline or to take jurisdiction of an action that has arisen outside the state so long as the movants demonstrate that the following three conditions are met: (1) the claim upon which the present action is based originated outside Alabama; (2) there is an alternative forum for this claim outside Alabama; and (3) the factors considered in determining the applicability of the doctrine."

Relative to the trial court's consideration was the fact that the insurance-coverage actions pending in California involved identical issues, the same damage locations, and nearly identical parties. The trial court also considered the fact that "[w]hether the various policies apply ... will depend on how the contamination occurred, why it occurred, and when it occurred-all questions the answers to which will depend on evidence gathered largely from the allegedly contaminated sites." 985 So.2d at 384 (emphasis added). Accordingly, the trial court granted the insurers' motion to dismiss the action filed in Alabama on forum non conveniens grounds in favor of California, holding that the acts giving rise to Vulcan's claim were the insurers' refusal to defend and indemnify the actions pending in California. In affirming the trial court's judgment, this Court emphasized:

"We reiterate that insurance-coverage actions involving substantially the same parties, regarding the same policies, and concerning the same underlying litigation are currently pending in California. By affirming the trial court's order granting the [insurers'] motion for a dismissal based on forum non conveniens, we are furthering the interests of justice by avoiding a duplicative action in Alabama. Permitting this case to go forward in Alabama, while a case identical in all material respects is pending in California, would unnecessarily and unjustifiably burden the parties and the respective judicial systems."

985 So.2d at 384. The present declaratory-judgment action is distinguishable insofar as it involves the applicability of the interest-of-justice prong of § 6-3-21.1 ; the action does not involve identical coverage actions in separate states that would result in duplicative actions; and the action is not dependent on evidence to be gathered from the Montgomery action because the Dow insurers settled the action on behalf of the Dow defendants.

We agree that the declaratory-judgment action in this case has a connection to Montgomery County insofar as the injury giving rise to the indemnity occurred in Montgomery and Blue filed his action in the Montgomery Circuit Court. "Although we assign 'considerable weight' to the location where the accident occurred, it is not, and should not be, the sole consideration for determining venue under the 'interest of justice' prong of § 6-3-21.1." Ex parte J&W Enterprises, 150 So.3d at 196-97. After the Dow insurers settled the Montgomery action on behalf of the Dow defendants, Alabama Electric and National Trust filed a declaratory-judgment action, the central issue of which concerns their rights and responsibilities under the master contract and/or the National Trust policy to indemnify the Dow parties' for the defense and settlement of the Montgomery action. Alabama Electric has its principal place of business in Houston County; Alabama Electric executed the master contract in Houston County; the master contract was delivered in Houston County; all communications related to the procurement of the National Trust policy were conducted in Houston County; and National Trust issued and delivered the National Trust policy in Houston County. Given these facts, we conclude that the trial court was within its discretion in finding that the Dow parties had failed to meet their burden of showing that the requested transfer to Montgomery County would better serve the interest of justice because Houston County appears to have as much, if not a greater, interest in the proper adjudication of this declaratory-judgment action as does Montgomery County. Accordingly, Alabama Electric and National Trust's choice of forum should not be disturbed. The Dow parties did not satisfy their burden at the trial-court level of demonstrating that a change in venue from Houston County to Montgomery County is warranted under the interest-of-justice prong of § 6-3-21.1. More importantly, the Dow parties have not satisfied the requisite burden of establishing that the trial court exceeded its discretion in denying their motions for a change of venue. See Ex parte Ben-Acadia, Ltd., 566 So.2d 486, 488 (Ala. 1990) ("In cases involving the exercise of discretion by a lower court, a writ of mandamus may issue to compel the exercise of that discretion; however, it may not issue to control the exercise of discretion except in a case of abuse."); Ex parte Finance America Corp., 507 So.2d 458, 460 (Ala. 1987) ("[A] writ of mandamus will not be granted unless there is a clear showing of error on the part of the trial judge.").

Conclusion

The trial court did not exceed its discretion in denying the Dow parties' motions for a change of venue based on the interest-of-justice prong of § 6-3-21.1. Accordingly, we deny their petition for a writ of mandamus.

PETITION DENIED.

Stuart, C.J., and Bolin, Parker, Main, and Wise, JJ., concur.

Murdock, Shaw, and Bryan, JJ., concur in the result.


source: Caselaw Access Project

author: PER CURIAM. PARKER, Justice (dissenting).

license: Public Domain

text:
    MANAGED HEALTH CARE ADMINISTRATION, INC., and Alabama Psychiatric Services, P.C. v. BLUE CROSS AND BLUE SHIELD OF ALABAMA
    1151099
    Supreme Court of Alabama.
    September 1, 2017
    P. Michael Yancey, Rodney E. Miller, J. Matthew Stephens, and Courtney Cooper Gipson of McCallum Methvin & Terrell, P.C., Birmingham, for appellants.
    Cavender C. Kimble, Ed R. Haden, and Thomas R. DeBray of Balch & Bingham, Birmingham, for appellee.
   PER CURIAM.

Managed Health Care Administration, Inc. ("MHCA"), and Alabama Psychiatric Services, P.C. ("APS") (hereinafter collectively referred to as "the plaintiffs"), appeal the Jefferson Circuit Court's denial of their motion to compel Blue Cross and Blue Shield of Alabama ("Blue Cross") to arbitrate MHCA's and APS's claims against Blue Cross and Blue Cross's counterclaims against the plaintiffs. We reverse and remand.

Facts and Procedural History

This case involves several contracts between various parties, some of whom are not parties to this appeal. Generally, beginning in 1986, Blue Cross contracted with APS, a subsidiary of MHCA, to provide mental-health services to Blue Cross's insureds. In 1991, Blue Cross's contract with APS was transferred to MHCA. In 1995, Blue Cross and MHCA entered into a new contract in which MHCA agreed to provide or arrange for mental-health services to Blue Cross's insureds ("the 1995 contract").

In 2006, Blue Cross and MHCA entered into yet another contract in which MHCA agreed to provide or arrange for mental-health services to Blue Cross's insureds ("the 2006 contract"). The 2006 contract included the following arbitration provision:

"Any disputes arising out of or relating to this Agreement shall be submitted to Arbitration in accordance with the rules of the American Arbitration Association then in effect, and the award rendered by the arbitrators shall be binding as between the parties and judgments on such award may be entered in any court having jurisdiction thereof."

The affidavit testimony of Edward Harris, Blue Cross's vice president of business development, states: "In late 2012, Blue Cross decided to replace MHCA, as its behavioral health benefits management vendor, with New Directions Behavioral Health, L.L.C." To that end, on September 23, 2013, Blue Cross and New Directions Behavioral Health, L.L.C. ("New Directions"), entered into a contract in which New Directions agreed to "arrange for the provision of all Covered Services to Members in accordance with the terms and conditions set forth in this Agreement" ("the Blue Cross-New Directions 2013 contract"). The Blue Cross-New Directions 2013 contract recognizes that Blue Cross "has utilized for years and is currently using [MHCA] and its subsidiary [APS] to provide its Members with behavioral health and substance use treatment." The Blue Cross-New Directions 2013 contract delegates to New Directions certain of Blue Cross's obligations to its insureds. In turn, the Blue Cross-New Directions 2013 contract permits New Directions to sub-delegate those delegated duties to a third party. The affidavit testimony of Harris states that Blue Cross asked New Directions to sub-delegate to MHCA certain of New Directions' delegable duties. The Blue Cross-New Directions 2013 contract includes an extensive dispute-resolution process that applies to "any dispute between [Blue Cross] and New Directions arising out of or related to this Agreement or the Parties' rights under this Agreement," which includes the following arbitration provision:

"[T]he Parties will refer the matter to binding arbitration pursuant to the Commercial Rules of the American Arbitration Association ('AAA'). Each Party will select one arbitrator and a third arbitrator will be selected by the two designated arbitrators. If there is no agreement on the third arbitrator, the President of the AAA will select the third arbitrator. A majority decision by the arbitrators and umpire will be final and binding on both Parties. Judgment may be entered upon the final decision of the arbitrators in any court having jurisdiction. The cost of the arbitration will be paid as determined by the arbitrators."

On October 1, 2013, pursuant to the authority granted it under the Blue Cross-New Directions 2013 contract and at the request of Blue Cross, New Directions entered into a contract which MHCA in which New Directions sub-delegated to MHCA certain of New Directions' obligations under the Blue Cross-New Directions 2013 contract ("the New Directions-MHCA 2013 contract"). Specifically, New Directions sub-delegated to MHCA its responsibility to manage the network of service providers that had been used to provide mental-health services to Blue Cross's insureds since 1986. The New Directions-MHCA 2013 contract includes an extensive dispute-resolution process that applies to "any dispute arising out of or related to this Agreement or the Parties' rights under this Agreement," which includes the following arbitration provision:

"[T]he Parties will refer the matter to binding arbitration pursuant to the Commercial Rules of the American Arbitration Association ('AAA'). Each Party will select one arbitrator and a third arbitrator will be selected by the two designated arbitrators. If there is no agreement on the third arbitrator, the President of the AAA will select the third arbitrator. A majority decision by the arbitrators and umpire will be final and binding on both Parties. Judgment may be entered upon the final decision of the arbitrators in any court having jurisdiction. The cost of the arbitration will be paid as determined by the arbitrators."

Harris's affidavit testimony states that, "once the [Blue Cross-New Directions 2013 contract] and the [New Directions-MHCA 2013 contract] were executed, Blue Cross and MHCA terminated the [1995 contract and the 2006 contract] by mutual agreement."

Thereafter, a disagreement arose concerning the amount of compensation MHCA was to receive for its services. On May 15, 2015, the plaintiffs sued Blue Cross and several fictitiously named defendants alleging fraudulent misrepresentation, fraudulent suppression, breach of an implied contract, and promissory estoppel; the plaintiffs amended their initial complaint on November 4, 2015. The plaintiffs made their first discovery request of Blue Cross in August 2015. Blue Cross did not produce the requested Blue Cross-New Directions 2013 contract until March 23, 2016.

On April 1, 2016, Blue Cross filed an amended answer to the plaintiffs' complaint and counterclaims against MHCA alleging unjust enrichment and breach of the 2006 contract. On May 16, 2016, MHCA filed a motion to dismiss Blue Cross's counterclaims.

On June 8, 2016, the plaintiffs filed with the American Arbitration Association ("AAA") a demand for arbitration based on the arbitration provisions in the 2006 contract and in the New Directions-MHCA 2013 contract. On June 9, 2016, the plaintiffs filed in the circuit court a motion to stay the proceedings in the circuit court and to compel arbitration of all the pending claims and counterclaims based on the arbitration provisions in the 2006 contract and in the New Directions-MHCA 2013 contract. The plaintiffs argued in their motion to compel arbitration that

"the full extent of the contractual relationship between [Blue Cross] and New Directions is now known and it is clear that [Blue Cross] is bound to the terms of the [New Directions-MHCA 2013 contract] (including the [alternative dispute resolution] provision) even though it is not a signatory to the agreement."

On June 22, 2016, Blue Cross filed a motion in opposition to the plaintiffs' motion to compel arbitration. Blue Cross asserted the following relevant arguments: that the circuit court, not the arbitrator, had the authority to determine whether a contract requiring arbitration between the parties exists; that Blue Cross "is not bound by the [New Directions-MHCA 2013 contract and that], therefore, no contract exists that requires Blue Cross to arbitrate"; that the plaintiffs waived their right to arbitration by substantially invoking the litigation process; and that the arbitration provision in the 2006 contract "is not applicable to Blue Cross'[s] counterclaim because that provision did not survive the contract's termination." The plaintiffs argued that the issues raised by Blue Cross were for the arbitrator to decide, not the circuit court.

On July 1, 2016, Blue Cross filed a motion for a preliminary injunction requesting that the circuit court "prohibit [the plaintiffs] from further prosecuting the arbitration proceeding they filed against Blue Cross until the arbitrability of the claims asserted therein is finally decided as to Blue Cross." On July 5, 2016, Blue Cross amended its motion to request that the circuit court enter a permanent injunction against the plaintiffs.

On July 8, 2016, following a hearing, the circuit court entered the following order denying the plaintiffs' motion to compel arbitration:

"[Blue Cross] did not sign the [New Directions-MHCA 2013 contract], which contains an arbitration clause that, by its terms, applies only to MHCA and New Directions. Gadsden Budweiser Distrib. Co. v. Holland, 807 So.2d 528, 530 (Ala. 2001). [Blue Cross] is not claiming any benefit under that agreement. Custom Performance, Inc. v. Dawson, 57 So.3d 90, 97-98 (Ala. 2010). [Blue Cross] did sign a now terminated contract, the 2006 ... [c]ontract, which contained an arbitration clause[;] however, that clause did not survive termination. Even if it did, [the] plaintiffs' claims do not arise out of or relate to that agreement. Moreover, [the] plaintiffs, who filed this action in this court instead of with [the] AAA, ... have taken substantial amounts of discovery, including a number of depositions, and waited until after the discovery cutoff, two days before their deadline to disclose experts, four months before the trial date, and after certain adverse rulings to seek to arbitrate their claims. This constituted a substantial invocation of the litigation process and a waiver of any right to arbitrate. Paw Paw's Camper City, Inc. v. Hayman, 973 So.2d 344, 348-49 (Ala. 2007). After carefully observing the live testimony of [Blue Cross's] witness, Michael Velezis, regarding, among other things, the extent to which [the] plaintiffs have invoked litigation in this forum, and the lack of any facts that would support a finding that Blue Cross is bound as a nonsignatory to the [New Directions-MHCA 2013 contract], and considering the other evidence in the record, the court finds his testimony credible and is persuaded that it would prejudice [Blue Cross] to shift this case to arbitration at this time. [Blue Cross] is not required to arbitrate [the] plaintiffs' claims or [Blue Cross's] counterclaims."

The circuit court also granted Blue Cross's request for a permanent injunction. The plaintiffs appealed.

Standard of Review
"Our standard of review of a ruling denying a motion to compel arbitration is well settled:
" ' "This Court reviews de novo the denial of a motion to compel arbitration. Parkway Dodge, Inc. v. Yarbrough, 779 So.2d 1205 (Ala. 2000). A motion to compel arbitration is analogous to a motion for a summary judgment. TranSouth Fin. Corp. v. Bell, 739 So.2d 1110, 1114 (Ala. 1999). The party seeking to compel arbitration has the burden of proving the existence of a contract calling for arbitration and proving that the contract evidences a transaction affecting interstate commerce. Id.'[A]fter a motion to compel arbitration has been made and supported, the burden is on the non-movant to present evidence that the supposed arbitration agreement is not valid or does not apply to the dispute in question.' Jim Burke Automotive, Inc. v. Beavers, 674 So.2d 1260, 1265 n. 1 (Ala. 1995) (opinion on application for rehearing)." '
" Elizabeth Homes, L.L.C. v. Gantt, 882 So.2d 313, 315 (Ala. 2003) (quoting Fleetwood Enters., Inc. v. Bruno, 784 So.2d 277, 280 (Ala. 2000) )."

SSC Montgomery Cedar Crest Oper. Co., LLC v. Bolding, 130 So.3d 1194, 1196 (Ala. 2013).

Further, we review the circuit court's entry of a permanent injunction de novo.

Sycamore Mgmt. Grp., LLC v. Coosa Cable Co., 42 So.3d 90, 93 (Ala. 2010) (citing TFT, Inc. v. Warning Sys., Inc., 751 So.2d 1238, 1241 (Ala. 1999) ).

Discussion

The plaintiffs argue that there are two agreements calling for arbitration of the claims and the counterclaims. The plaintiffs argue that the arbitration provisions in the 2006 contract and the New Directions-MHCA 2013 contract require that the parties arbitrate their claims. The circuit court determined that neither of the arbitration provisions required Blue Cross to arbitrate the claims at issue in this case.

The plaintiffs argue that the arbitration provision in the 2006 contract requires that the claims between the parties be arbitrated. The plaintiffs have demonstrated the existence of the 2006 contract and that it evidences transactions affecting interstate commerce. The burden of proof then shifted to Blue Cross to present evidence that the arbitration provision in the 2006 contract does not apply to the dispute between the plaintiffs and Blue Cross. The circuit court denied the plaintiffs' motion to compel arbitration based on the arbitration provision in the 2006 contract because the circuit court found that the arbitration provision "did not survive termination" of the 2006 contract. The circuit court further found that, even if the plaintiffs did have a right to arbitration, the plaintiffs waived that right by substantially invoking the litigation process.

On appeal, the plaintiffs argue that the circuit court erred in determining the above issues of arbitrability because the parties agreed in the 2006 contract that such issues would be decided by an arbitrator. The plaintiffs are correct.

In Ex parte Shamrock Food Service, Inc., 514 So.2d 921 (Ala. 1987), a case relied upon by the plaintiffs, the question before this Court was whether a dispute over the termination of an agreement between two parties was within the scope of the agreement's arbitration provision. The arbitration provision at issue in Ex parte Shamrock stated:

" 'In the event of any dispute(s) in regard to matters stated herein, which may not be resolved mutually between the parties hereto, such matters shall be referred to a Board of Arbitration.... If the two so named cannot agree on a third member, the Director of the Federal Mediation and Conciliation Service shall be requested to name the third member.... The decision of the majority of the members of the Board of Arbitration shall be final and binding upon both parties to the Agreement.' "

514 So.2d at 921. This Court held: "Clearly, under the broad provisions of the arbitration clause, the issue of whether the contract has been terminated must be submitted to arbitration." Id. at 922. Essentially, this Court determined that the parties agreed that such an arbitrability question was to be decided by the arbitrator, not the circuit court.

In the present case, the arbitration provision in the 2006 contract provides, in pertinent part: "Any disputes arising out of or relating to this Agreement shall be submitted to Arbitration in accordance with the rules of the American Arbitration Association then in effect ...." Concerning similar language in an arbitration provision, this Court stated in Bugs "R" Us, LLC v. McCants, 223 So.3d 913, 919 (Ala. 2016):

"In Anderton [v. The Practice-Monroeville, P.C., 164 So.3d 1094 (Ala. 2014) ], this Court determined that the incorporation into an arbitration provision of the commercial arbitration rules of ... the AAA[ ] constituted clear and unmistakable evidence of the parties' intent to submit issues of arbitrability to the arbi trator. See 164 So.3d at 1101-02. This Court reiterated this conclusion in Federal Insurance Co. v. Reedstrom, 197 So.3d 971, 976 (Ala. 2015) :
" 'Like the arbitration agreement in Anderton [v. The Practice-Monroeville, P.C., 164 So.3d 1094 (Ala. 2014) ], the arbitration provision in this case provides that any arbitration proceedings will be conducted "pursuant to the then-prevailing commercial arbitration rules of the American Arbitration Association." The relevant commercial arbitration rule, Rule 7(a), expressly provides, in its current form, that "[t]he arbitrator shall have the power to rule on his or her own jurisdiction, including any objections with respect to the existence, scope, or validity of the arbitration agreement or to the arbitrability of any claim or counterclaim." See Chris Myers Pontiac-GMC, Inc. v. Perot, 991 So.2d 1281, 1284 (Ala. 2008) (noting that we may take judicial notice of the commercial arbitration rules of the American Arbitration Association even when they do not appear in the record). Thus, pursuant to Rule 7(a), ... the question of whether [the defendant] has waived its right to enforce the arbitration provision ... ha[s] been delegated to the arbitrators, and the arbitrators, not the trial court, must decide th[i]s[ ] threshold issue[ ].'
"The arbitration provision in this case provides, in pertinent part: '[A]ny claim ... shall be resolved by neutral binding arbitration by the American Arbitration Association, under the rules of the AAA in effect at the time the claim is filed ....' Rule 7(a) of the AAA Commercial Rules provides: 'The arbitrator shall have the power to rule on his or her own jurisdiction, including any objections with respect to the existence, scope, or validity of the arbitration agreement or the arbitrability of any claim or counterclaim.' Rule 7(b) provides, in pertinent part: 'The arbitrator shall have the power to determine the existence or validity of a contract of which an arbitration clause forms a part.' Therefore, the arbitration provision in this case shows an intent by the parties to submit issues of arbitrability to the arbitrator."

(Emphasis added; footnotes omitted.)

As is made clear in Bugs "R" Us, under the broad language in the arbitration provision in the 2006 contract, the arbitrability issues whether the arbitration provision in the 2006 contract has been terminated and whether MHCA waived its right to arbitration are issues for the arbitrator, not the circuit court. See also Polaris Sales, Inc. v. Heritage Imports, Inc., 879 So.2d 1129, 1133 (Ala. 2003) ("Questions of arbitrability include those relating to the scope, interpretation, and application of the arbitration agreement, Jim Burke Auto., Inc. v. McGrue, 826 So.2d 122, 132 (Ala. 2002), as well as the issue whether a party has waived its right to demand arbitration by 'substantially invok[ing] the litigation process.' Hales v. ProEquities, Inc., [885] So.2d [100], [105] (Ala. 2003)."). The circuit court erred in that it improperly determined issues of arbitrability, which the parties had contractually agreed to submit to an arbitrator.

The plaintiffs also state that the circuit court held that, even if the arbitration provision in the 2006 contract survived the termination of the 2006 contract, the plaintiffs' "claims do not arise out of or relate to that agreement." The plaintiffs argue that this, too, is an issue of arbitrability to be decided by the arbitrator and that the circuit court erred in determining this arbitrability issue. The plaintiffs are correct.

In First Options of Chicago, Inc. v. Kaplan, 514 U.S. 938, 115 S.Ct. 1920, 131 L.Ed.2d 985 (1995), the United States Supreme Court concluded that, if parties to a contract agreed to submit the question of arbitrability itself to arbitration, then the arbitrator should decide issues related to that question. As set forth above, the arbitration provision in the 2006 contract specifically incorporates the Commercial Rules of the AAA. Rule 7(a) of the AAA Commercial Rules provides: "The arbitrator shall have the power to rule on his or her own jurisdiction, including any objections with respect to the existence, scope, or validity of the arbitration agreement or to the arbitrability of any claim or counterclaim." The broad language of Rule 7(a) is clear and unmistakable evidence that the parties agreed that the arbitrator, not the circuit court, would decide issues of jurisdiction and scope of the arbitration provision in the 2006 contract. Therefore, we conclude that the circuit court erred in determining that the parties' claims and counterclaims do not arise out of the 2006 contract; that is an issue for the arbitrator to decide.

In fact, we note that Blue Cross specifically alleges in one of its counterclaims that MHCA breached the 2006 contract. Blue Cross recognizes this fact in its brief and argues that its breach-of-contract counterclaim is the only claim that could possibly arise out of the 2006 contract. Blue Cross then states that it "hereby abandons its counterclaim for breach of the [2006 contract]." Blue Cross's brief, at pp. 68-69. However, as stated above, it is for the arbitrator, not the courts, to determine whether the claims asserted by the parties are within the scope of the 2006 contract. Further, we note that Blue Cross's expressed intention in its brief before this Court to "abandon its counterclaim" does not operate as an actual dismissal of Blue Cross's breach-of-contract counterclaim. See Rule 41(c), Ala. R. Civ. P.

We conclude that the plaintiffs have demonstrated that they have a right to arbitration. The circuit court erred in denying the plaintiffs' motion to compel arbitration, and we reverse the circuit court's judgment denying the plaintiffs' motion to compel arbitration in its entirety. Our conclusion that the plaintiffs are entitled to arbitration of the parties' claims under the arbitration provision in the 2006 contract pretermits discussion of the parties' arguments concerning the arbitration provision in the New Directions-MHCA 2013 contract.

Further, based on its conclusion that the plaintiffs did not have a right to arbitrate the parties' claims, the circuit court granted a permanent injunction enjoining the plaintiffs from arbitrating the parties' claims. Our conclusion that the plaintiffs do have a right to arbitrate the parties' claims removes the basis of the circuit court's permanent injunction. Thus, we also reverse the circuit court's permanent injunction against the plaintiffs.

Conclusion

Based on the foregoing, we reverse the circuit court's judgment and its permanent injunction and remand the matter for the circuit court to enter an order granting the plaintiffs' motion to compel arbitration and staying the proceedings pending the outcome of that arbitration.

REVERSED AND REMANDED.

Stuart, C.J., and Bolin, Shaw, Main, and Bryan, JJ., concur.

Parker and Murdock, JJ., dissent.

Wise and Sellers, JJ., recuse themselves.

PARKER, Justice (dissenting).

I respectfully dissent. My dissent is based on the reasoning set forth in Justice Murdock's dissent in Federal Insurance Co. v. Reedstrom, 197 So.3d 971, 979-81 (Ala. 2015) (Murdock, J., dissenting), which I joined. In short, I do not believe that a general reference in an arbitration provision to the Commercial Rules of the American Arbitration Association is "clear and unmistakable evidence" that the parties agreed to have an arbitrator, not the circuit court, decide all issues of arbitrability.

      Blue Cross argues that the arbitrator cannot consider which contract, the 2006 contract or the New Directions-MHCA 2013 contract, the parties' claims arise under because the circuit court has already determined that all but Blue Cross's breach-of-contract counterclaim arise under the New Directions-MHCA 2013 contract. However, we reverse the entirety of the circuit court's order denying the plaintiffs' motion to compel arbitration. Therefore, upon reversing the circuit court's order, there is no judicial determination of that issue. That is an issue for the arbitrator to decide.


author: WISE, Justice.

text:
    EX PARTE CITY OF SELMA
    (In re Gregory Pettaway v. Santander Consumer USA, Inc., et al.)
    1160469
    Supreme Court of Alabama.
    September 1, 2017
    Rick A. Howard and April W. McKay of Holtsford, Gilliland, Higgins, Hitson, & Howard, P.C., Montgomery, for petitioner.
    Danny W. Crenshaw and Dawn M. Oliver of Crenshaw Law Firm, Selma, for respondent.
   WISE, Justice.

The City of Selma ("the City"), a defendant below, filed a petition for a writ of mandamus requesting that this Court direct the Dallas Circuit Court to enter a summary judgment in its favor, based on State-agent immunity, as to claims Gregory Pettaway filed against it. We grant the petition and issue the writ.

Facts and Procedural History

Pettaway financed the purchase of a 2006 Nissan Armada sport-utility vehicle. Subsequently, Santander Consumer USA, Inc. ("Santander"), took over the loan. It appears that Santander contracted with Par North America, Inc. ("Par"), to handle repossessions for it and that Par used Central Alabama Recovery Systems ("CARS") to carry out the actual repossessions.

At around 4:30 a.m. on November 22, 2010, two men from CARS came to Pettaway's residence and told him that they were there to repossess the vehicle. By the time Pettaway got dressed and walked outside, the men had already hooked the Armada up to the tow truck and lifted it. Pettaway objected and telephoned the Selma Police Department; Officer Jonathan Fank responded to the call. After Officer Fank told Pettaway that the repossession was a civil matter and that he could not do anything because the vehicle was already hooked up to the tow truck, Pettaway again called the Selma Police Department to ask that Officer Fank's supervisor come to the scene.

Officer Willie Calhoun, a senior officer, arrived and looked at the paper the men from CARS had, noted how far behind in payments the paper indicated that Pettaway was, and told the men to take the vehicle. He also told Pettaway to get any of his personal belongings out of the vehicle before the men towed it away, and Pettaway did.

On May 23, 2011, Pettaway filed a complaint in the Dallas Circuit Court against Santander, Par, CARS, and the City. He stated conversion, negligence, wantonness, and trespass claims. Although he stated conversion, negligence, wantonness, and trespass claims, Pettaway admitted that his only complaint against the City was that the officers told the repossession men to take the vehicle.

On June 2, 2011, the City filed an answer in which it admitted that officers were called to the scene at Pettaway's request to keep the peace but denied the remaining allegations as to the actions of its officers. It also raised the affirmative defense of immunity, including "immunity pursuant to § 6-5-338(b), Ala. Code 1975."

On June 28, 2011, the City filed a motion for a summary judgment. On August 24, 2011, Pettaway filed a response and an objection to the City's motion, but he did not present any evidence in support of his response. On January 13, 2014, the City filed a supplement to its motion for a summary judgment, adding as a ground an assertion that the City was entitled to State-agent immunity pursuant to § 6-5-338 and Ex parte Cranman, 792 So.2d 392 (Ala. 2000). The City supported the supplement with a brief, an affidavit from Officer Fank, and Pettaway's deposition testimony. Pettaway did not respond to the City's supplement.

The trial court conducted a hearing on the motion for a summary judgment. On February 20, 2017, it denied the motion. This petition followed.

Standard of Review

" 'While the general rule is that the denial of a motion for summary judgment is not reviewable, the exception is that the denial of a motion for summary judgment grounded on a claim of immunity is reviewable by petition for writ of mandamus.' Ex parte Rizk, 791 So.2d 911, 912 (Ala. 2000). A writ of mandamus is an extraordinary remedy available only when there is: '(1) a clear legal right to the order sought; (2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; (3) the lack of another adequate remedy; and (4) the properly invoked jurisdiction of the court.' Ex parte BOC Group, Inc., 823 So.2d 1270, 1272 (Ala. 2001)."

Ex parte Nall, 879 So.2d 541, 543 (Ala. 2003). Also,

"whether review of the denial of a summary-judgment motion is by a petition for a writ of mandamus or by permissive appeal, the appellate court's standard of review remains the same. If there is a genuine issue as to any material fact on the question whether the movant is entitled to immunity, then the moving party is not entitled to a summary judgment. Rule 56, Ala. R. Civ. P. In determining whether there is a material fact on the question whether the movant is entitled to immunity, courts, both trial and appellate, must view the record in the light most favorable to the nonmoving party, accord the nonmoving party all reasonable favorable inferences from the evidence, and resolve all reasonable doubts against the moving party, considering only the evidence before the trial court at the time it denied the motion for a summary judgment. Ex parte Rizk, 791 So.2d 911, 912 (Ala. 2000)."

Ex parte Wood, 852 So.2d 705, 708 (Ala. 2002).

Discussion

The City argues that the trial court erroneously denied its motion for a summary judgment. Specifically, it contends that, at the time of the incident that formed the basis for Pettaway's complaint, Officers Fank and Calhoun were performing discretionary functions within the line and scope of their law-enforcement duties and that, therefore, they would be entitled to State-agent immunity. The City also asserts that none of the exceptions to State-agent immunity apply to this case. Therefore, it concludes that it is entitled to immunity based on the discretionary-function immunity that is afforded to police officers by § 6-5-338 and on State-agent immunity pursuant to Ex parte Cranman, 792 So.2d 392 (Ala. 2000).

Pettaway sued the City based on the actions of its officers, but he did not sue Officers Fank and Calhoun individually.

"It is well established that, if a municipal peace officer is immune pursuant to § 6-5-338(a), then, pursuant to § 6-5-338(b), the city by which he is employed is also immune. Section 6-5-338(b) provides: 'This section is intended to extend immunity only to peace officers and governmental units or agencies authorized to appoint peace officers.' (Emphasis added.) See Ex parte City of Gadsden, 781 So.2d 936, 940 (Ala. 2000). On the other hand, if the statute does not shield the officer, it does not shield the city. Borders v. City of Huntsville, 875 So.2d 1168, 1183 (Ala. 2003)."

Howard v. City of Atmore, 887 So.2d 201, 211 (Ala. 2003). Therefore, if Officers Fank and Calhoun would be entitled to immunity under § 6-5-338, then the City is entitled to immunity.

In Ex parte City of Midfield, 161 So.3d 1158, 1163-64 (Ala. 2014), this Court recognized:

" 'Section 6-5-338(a)[, Ala. Code 1975,] provides:
" ' "Every peace officer, except constables, who is employed or appointed pursuant to the Constitution or statutes of this state ... and whose duties prescribed by law, or by the lawful terms of their employment or appointment, include the enforcement of, or the investigation and reporting of violations of, the criminal laws of this state, and who is empowered by the laws of this state to execute warrants, to arrest and to take into custody persons who violate, or who are lawfully charged by warrant, indictment, or other lawful process, with violations of, the criminal laws of this state, shall at all times be deemed to be officers of this state, and as such shall have immunity from tort liability arising out of his or her conduct in performance of any discretionary function within the line and scope of his or her law enforcement duties."
" 'The restatement of State-agent immunity as set out by this Court in Ex parte Cranman, [ 792 So.2d 392 (Ala. 2000) ], governs the determination of whether a peace officer is entitled to immunity under § 6-5-338(a). Ex parte City of Tuskegee, 932 So.2d 895, 904 (Ala. 2005). This Court, in Cranman, stated the test for State-agent immunity as follows:
" ' "A State agent shall be immune from civil liability in his or her personal capacity when the conduct made the basis of the claim against the agent is based upon the agent's
" ' "....
" ' "(4) exercising judgment in the enforcement of the criminal laws of the State, including, but not limited to, law-enforcement officers' arresting or attempting to arrest persons; ...
" ' "....
" ' "Notwithstanding anything to the contrary in the foregoing statement of the rule, a State agent shall not be immune from civil liability in his or her personal capacity
" ' "(1) when the Constitution or laws of the United States, or the Constitution of this State, or laws, rules, or regulations of this State enacted or promulgated for the purpose of regulating the activities of a governmental agency require otherwise; or
" ' "(2) when the State agent acts willfully, maliciously, fraudulently, in bad faith, beyond his or her authority, or under a mistaken interpretation of the law."
" 'Cranman, 792 So. 2d at 405. Because the scope of immunity for law-enforcement officers set forth in § 6-5-338(a) was broader than category (4) of the restatement adopted in Cranman, this Court, in Hollis v. City of Brighton, 950 So.2d 300, 309 (Ala. 2006), expanded and modified category (4) of the Cranman test to read as follows:
" ' " 'A State agent shall be immune from civil liability in his or her personal capacity when the conduct made the basis of the claim against the agent is based upon the agent's
" ' " '....
" ' " '(4) exercising judgment in the enforcement of the criminal laws of the State, including, but not limited to, law-enforcement officers' arresting or attempting to arrest persons, or serving as peace officers under circumstances entitling such officers to immunity pursuant to § 6-5-338(a), Ala. Code 1975.' "
" ' Hollis, 950 So.2d at 309. Additionally:
" ' " 'This Court has established a "burden-shifting" process when a party raises the defense of State-agent immunity.' Ex parte Estate of Reynolds, 946 So.2d 450, 452 (Ala. 2006). A State agent asserting State-agent immunity 'bears the burden of demonstrating that the plaintiff's claims arise from a function that would entitle the State agent to immunity.' 946 So.2d at 452. Should the State agent make such a showing, the burden then shifts to the plaintiff to show that one of the two categories of exceptions to State-agent immunity recognized in Cranman is applicable. ..." '
" Ex parte City of Montgomery, 99 So.3d [282,] 291-94 [ (Ala. 2012) ] (quoting Ex parte Kennedy, 992 So.2d 1276, 1282-83 (Ala. 2008) )."

In Ex parte Kennedy, 992 So.3d 1276, 1282-83 (Ala. 2008), this Court stated:

"The exception being argued here is that 'the State agent acted willfully, maliciously, fraudulently, in bad faith, or beyond his or her authority.' [ Ex parte Estate of Reynolds,] 946 So.2d [450,] 452 [ (Ala. 2006) ]. One of the ways in which a plaintiff can show that a State agent acted beyond his or her authority is by proffering evidence that the State agent failed ' "to discharge duties pursuant to detailed rules or regulations, such as those stated on a checklist." ' Giambrone v. Douglas, 874 So.2d 1046, 1052 (Ala. 2003) (quoting Ex parte Butts, 775 So.2d [173,] 178 [ (Ala. 2000) ] )."

It is undisputed that Officers Fank and Calhoun are "peace officers" for purposes of § 6-5-338(a) and that their alleged misconduct occurred while they were performing a discretionary law-enforcement function-i.e., preventing a breach of the peace. Therefore, based on Ex parte Cranman, as modified by Hollis v. City of Brighton, 950 So.2d 300 (Ala. 2006), the City satisfied its burden of establishing that the officers would be entitled to State-agent immunity.

Because the City established that the officers would be entitled to State-agent immunity, the burden then shifted to Pettaway to establish that " 'one of the two categories of exceptions to State-agent immunity recognized in Cranman is applicable.' " Ex parte City of Montgomery, 99 So.3d 282, 293 (Ala. 2012) (quoting Ex parte Kennedy, 992 So.2d at 1282 ). In his complaint, Pettaway alleged that

"Defendant City of Selma acted improperly through its Officers ... in order[ing] Plaintiff's vehicle to be taken. All acts were done wantonly, recklessly and maliciously."

However, after the City presented evidence showing that the officers would be entitled to State-agent immunity, Pettaway did not present any evidence, much less substantial evidence, to create a genuine issue of material fact as to whether Officers Fank and Calhoun " 'failed " 'to discharge duties pursuant to detailed rules or regulations, such as those stated on a checklist,' " ' " Ex parte City of Montgomery, 99 So.3d at 294 (quoting other cases), or acted willfully, maliciously, fraudulently, in bad faith, beyond their authority, or under a mistaken interpretation of the law. In fact, Pettaway did not offer any argument or evidence in response to the City's supplemental motion for a summary judgment, which included its immunity arguments. Because Pettaway has not demonstrated that one of the exceptions to State-agent immunity under Ex parte Cranman applies under the facts of this case, Officers Fank and Calhoun would be entitled to State-agent immunity. Based on this Court's holding in Howard, supra, the City is likewise entitled to immunity.

Conclusion

For the above-stated reasons, we conclude that the City has established that it has a clear legal right to a summary judgment in its favor based on State-agent immunity pursuant to § 6-5-338 and Ex parte Cranman. Accordingly, we grant the City's petition for a writ of mandamus and direct the trial court to vacate its order denying the City's motion for a summary judgment and to enter a summary judgment for the City.

PETITION GRANTED; WRIT ISSUED.

Stuart, C.J., and Bolin, Parker, Shaw, Main, Bryan, and Sellers, JJ., concur.

Murdock, J., concurs in the result.

      The claims against Santander were resolved through arbitration, and the claims against CARS and Par were dismissed by a joint stipulation of the parties.

      In the complaint, Pettaway incorrectly identified the responding officers as Officers Smyly and Benjamin.

      Neither party has provided a transcript of the hearing for this Court's review.


author: PER CURIAM.

text:
    Felisha BAILEY v. JACKSONVILLE HEALTH AND REHABILITATION CENTER
    2160350
    Court of Civil Appeals of Alabama.
    July 21, 2017 Rehearing Denied September 29, 2017
    Lauren Shine of Shine Law Firm, Birmingham, for appellant.
    David S. Hassinger and Karen R. Berhow of Porter, Porter & Hassinger, P.C., Birmingham; and Thomas E. Dick of Sides, Oglesby, Held, Dick & Burgess, LLC, Anniston, for appellee.
   PER CURIAM.

Felisha Bailey ("the employee") was employed by Jacksonville Health and Rehabilitation Center ("the employer") as a certified nursing assistant. In January 2013, she sued the employer and Millennium Risk Managers, the employer's workers' compensation claims administrator, in the Calhoun Circuit Court ("the trial court"). In her complaint, the employee sought from the employer benefits under the Alabama Workers' Compensation Act, codified at Ala. Code 1975, § 25-5-1 et seq. ("the Act"), for her alleged contraction of scabies and her alleged resulting psychological injuries. In count two of her complaint, the employee sought damages for the tort of outrage from the employer and Millennium Risk Managers. The trial court dismissed the tort-of-outrage claim in May 2013, and the workers' compensation action proceeded solely against the employer.

In August 2016, the employer moved for a summary judgment in its favor. In that motion, the employer argued that the employee had not contracted scabies and that she had not suffered a psychological injury compensable under the Act and that she was therefore not entitled to workers' compensation benefits. The employer's motion was supported by excerpts from the employee's deposition, excerpts from the deposition of Dr. Janet Cash, and an affidavit from Dr. Glenn O. Archibald. The employee responded to the motion, filing in opposition to the motion copies of certain medical records. After a hearing, the trial court entered a judgment in favor of the employer. The employee timely appealed.

We review a summary judgment de novo; we apply the same standard as was applied in the trial court. A motion for a summary judgment is to be granted when no genuine issue of material fact exists and the moving party is entitled to a judgment as a matter of law. Rule 56(c)(3), Ala. R. Civ. P. A party moving for a summary judgment must make a prima facie showing "that there is no genuine issue as to any material fact and that [it] is entitled to a judgment as a matter of law." Rule 56(c)(3) ; see Lee v. City of Gadsden, 592 So.2d 1036, 1038 (Ala. 1992). If the movant meets that burden, "the burden then shifts to the nonmovant to rebut the movant's prima facie showing by 'substantial evidence.' " Lee, 592 So.2d at 1038 (footnote omitted). "[S]ubstantial 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." West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala. 1989) ; see Ala. Code 1975, § 12-21-12(d). Furthermore, when reviewing a summary judgment, the appellate court must view all the evidence in a light most favorable to the nonmovant and must entertain all reasonable inferences from the evidence that a jury would be entitled to draw. See Nationwide Prop. & Cas. Co. v. DPF Architects, P.C., 792 So.2d 369, 372 (Ala. 2000) ; and Fuqua v. Ingersoll-Rand Co., 591 So.2d 486, 487 (Ala. 1991).

The facts contained in the exhibits supporting and opposing the motion for a summary judgment are as follows. In June 2012, the employee noticed a rash on her arms and face. The employee explained that the employer had experienced an outbreak of scabies at its facility during this time frame. The employee admitted that she could not diagnose herself with scabies because "it is not like you can just look at your skin and say 'oh, I've got scabies.' "

She also testified in her deposition that she knew that she had lice in June 2012 because she could see the lice; however, she also said that the "white stuff" in her hair could have been dandruff. She reported that she had requested that the employer provide medication to treat her rash and that Bonita Golding, the director of nursing for the employer, had supplied the employee with medication.

The employee then sought treatment from her personal physician, Dr. Johnnie Stevens, on June 25, 2012. The employee reported to Dr. Stevens that she had been exposed to scabies and lice during her employment. Medical records from Dr. Stevens indicate that he diagnosed the employee with "a rash that is erythematous urticarial." Dr. Stevens prescribed an injection of Decadron and several other medications, including Elimite, Ivermectin, Vistaril, and DexPak. The medical records indicate that Dr. Stevens instructed the employee to "follow up as needed, if not better in 3 to 4 days."

The employee sought additional medical treatment at the Stringfellow Memorial Hospital emergency room ("the emergency room") on June 28, 2012. The record from the employee's visit on that date indicates that she was seen by Dr. Kevin Sells, to whom she reported that her place of employment had suffered an outbreak of scabies. The medical record also indicates that the employee reported that "the scabies are coming out." According to the medical record, Dr. Sells diagnosed the employee with scabies and instructed her on the treatment of scabies. Like Dr. Stevens, Dr. Sells prescribed Decadron, Vistaril, and Elimite; in addition, Dr. Sells prescribed prednisone. The employee's discharge instructions were to see Dr. Mohammad Ismail in two to three days for a "recheck."

The employee returned to the emergency room on July 1, 2012, and was again treated by Dr. Sells. The record from the July 1, 2012, visit contains the following description of the employee's condition:

"The [employee's] rash thought to be caused by scabies. The rash is located on the body diffusely. The rash can be described as erythematous, papular, consistent with scabies infestation.... [The employee's] husband states that 'her nerves are driving her crazy and she is driving me crazy.' [The employee] states that she continues to itch."

The July 1, 2012, record indicates that Dr. Sells's impression was "Scabies, Anxiety Reaction." Dr. Sells administered an injection of hydroxyzine to the employee at the July 1, 2012, visit.

The employee was examined by Dr. Michael K. Morris on July 10 and 19, 2012. Dr. Morris's notes indicate that the employee reported that she was being treated for scabies. His examination of the employee on July 10, 2012, revealed no rash on her neck, face, or hands, but he noted that examination of the employee's limbs revealed "several punctuate [sic] lesions with scabs." Upon his reexamination of the employee on July 19, 2012, Dr. Morris noted "no rash, including no punctuate [sic] lesion, scabs, or burrowing" on her limbs. Dr. Morris diagnosed the employee with a mite infestation.

Dr. Janet Cash, a dermatologist, examined the employee on October 11, 2012. She testified in her deposition that the employee was not suffering from scabies at the time of the October 2012 appointment. Dr. Cash noted that the employee had reported that she had scabies on her face and scalp, which, according to Dr. Cash, scabies do not inhabit. In addition, Dr. Cash said that the employee testified that she had seen the scabies "coming out," which Dr. Cash explained was not possible because scabies are microscopic parasites. Dr. Cash also pointed out that Dr. Stevens, who saw the employee in June 2012, had diagnosed the employee with "a rash that is erythematous urticarial," which, Dr. Cash explained, is, in common parlance, hives resulting from an allergic reaction.

Dr. Cash further testified that, although she was aware that other physicians had diagnosed the employee with scabies, she had not seen any evidence or documentation that supported that diagnosis; notably, Dr. Cash said, other physicians had not performed objective testing to confirm the diagnosis. According to Dr. Cash, scabies cannot be diagnosed merely by examining a patient's rash. She said that other rashes have a similar appearance to that of a scabies rash. Dr. Cash explained that, to verify that a patient is suffering from scabies, a skin scraping or biopsy must be performed and the sample examined under a microscope. Dr. Cash opined that, based on her examination of the employee, the employee likely never had scabies; however, she indicated that, had the employee had scabies in June or July 2012, she would not have had an infestation in October 2012 if she had taken the medications she had been prescribed, including Elimite, which, Dr. Cash said, was the standard prescription for the treatment of scabies.

Dr. Cash also opined that the employee likely suffered from an underlying psychological issue. In fact, Dr. Cash recommended that the employee undergo a psychiatric evaluation. Dr. Cash said that the employee appeared to be suffering from delusional parasitosis, which is a disorder that causes a person to believe that they are being infested by parasites. According to Dr. Cash, the employee brought to her appointment a medication bottle and a plastic sandwich bag that, the employee said, contained bugs that had crawled from her skin. Dr. Cash said that she had examined the material contained in the bottle and the bag and that no scabies or other parasitic organisms were present. Dr. Cash explained that delusional parasitosis arises from an underlying anxiety problem. Although she testified that she was unaware of any case where the disorder was caused, or contributed to, by a case of scabies, she said that, if a patient had an underlying psychological condition, she "supposed" that delusional parasitosis"could" be triggered by a scabies infestation. However, Dr. Cash also testified that the employee's psychological problems were not, in her opinion, related to the employee's employment.

Dr. Archibald's affidavit indicated that he had seen the employee for the first time in February 2013 and approximately every two months thereafter. He stated that he had diagnosed the employee with "major depressive disorder, severe, with psychotic features." In his affidavit, which was made in support of a guardianship petition, he opined that the employee has "a disability that interferes with her ability to make or communicate responsible decisions regarding health care, food, clothing, shelter, or administration of property." He explained in further detail that

"[the employee] is so bothered by symptoms of severe anxiety, depression and occasional psychoses, she is unable to function in a work environment. [She] is unable to perform the following functions: Poor tolerance for social situations, dramatic mood shifts, volatile, phobic response to non-home environments. Severe anxiety in work related, non-home situations. Social intolerance and paranoia." Dr. Archibald did not explain in his affidavit what caused or contributed to the employee's psychological issues.

In its summary-judgment order in favor of the employer, the trial court concluded that "the only objective, verified, credible and authoritative medical evidence, which is undisputed, is the testimony of ... Dr. Janet Cash, a Board Certified Dermatologist, who testified with a reasonable degree of medical probability and a reasonable degree of medical certainty that [the employee] did not contract scabies ...." Thus, the trial court determined that the employee had not "produce[d] any objective medical evidence that she contracted scabies, or that she contracted scabies while on the job." In addition, the trial court concluded that, because the employee had not suffered a physical injury, she could not recover for any alleged psychological injury. See Ex parte Vongsouvanh, 795 So.2d 625, 628 (Ala. 2000) (explaining that, "[u]nder Alabama law, for an employee to recover for psychological disorders, the employee must have suffered a physical injury to the body and that physical injury must be a proximate cause of the psychological disorders"). Moreover, the trial court determined that the employee had not proven that her alleged psychological injury had been proximately caused by her alleged contraction of scabies during her employment.

The employee argues on appeal that the trial court erred by making credibility and factual determinations instead of properly applying the summary-judgment standard. She contends that the evidence before the trial court, viewed in the light most favorable to her, demonstrates that factual issues regarding the employee's alleged contraction of scabies and the causation of her psychological injury exist. We agree.

As we explained above, to survive a properly supported motion for a summary judgment, a nonmovant must present substantial evidence that creates a genuine issue of material fact as to the elements of the nonmovant's claim. See Lee, 592 So.2d at 1038. However,

"[a]t the summary-judgment stage, it is not the trial court's function ' "to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial." ' Camp v. Yeager, 601 So.2d 924, 927 (Ala. 1992) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 91 L.Ed. 2d 202 (1986) ). Furthermore, ' " 'a court may not determine the credibility of witnesses on a motion for summary judgment.' " ' Wilson v. Teng, 786 So.2d 485, 498 (Ala. 2000) (quoting Ex parte Usrey, 777 So.2d 66, 68 (Ala. 2000), quoting in turn Phillips v. Wayne's Pest Control Co., 623 So.2d 1099, 1102 (Ala. 1993) )."

Nix v. Franklin Cty. Dep't of Human Res., 234 So. 3d 450, 456 (Ala. 2017).

Dr. Cash's testimony indicated that other physicians had diagnosed the employee with scabies. The medical records submitted by the employee indicated that she was diagnosed with scabies or a mite infestation by at least two doctors; in addition, Dr. Stevens, although his notes did not reflect that he diagnosed the employee with scabies, prescribed Elimite, a medication that Dr. Cash described as the standard medication to treat scabies, to the employee. Dr. Cash took issue with those diagnoses, questioning whether the diagnoses were correct or supported by objective testing. However, the trial court erred by determining that Dr. Cash's testimony was the only "credible" evidence regarding whether the employee contracted scabies.

At the summary-judgment stage, the question before the trial court is not whether one witness's testimony or a particular piece of evidence is more credible or convincing than another. Instead, the trial court is to confine itself to determining whether there exists a genuine issue of material fact. The trial court in the present case was presented with conflicting evidence: deposition testimony of one physician indicating that the employee did not have scabies and medical records from other physicians indicating that she had been diagnosed with scabies during or shortly after what the employee testified was an outbreak at her place of employment. A genuine issue of material fact exists, and the summary judgment in favor of the employer, insofar as it is related to the employee's claim seeing workers' compensation for her alleged contraction of scabies, is therefore reversed.

We reach the same conclusion about the summary judgment in favor of the employer on the employee's claim that she suffered a psychological injury. Dr. Archibald's affidavit testimony was that the employee suffered from severe depression with psychosis. Dr. Cash testified that she believed that the employee suffered from delusional parasitosis. Although we have only excerpts of Dr. Cash's testimony, she indicates that the employee may have been suffering from delusional parasitosis even as early as June 2012, when she first complained that she had contracted scabies. Dr. Cash testified that she was not aware of any case in which a person had developed delusional parasitosis from contracting scabies; however, she also testified that it was possible that a scabies infestation could trigger delusional parasitosis if a patient already had a psychiatric disorder.

Although the testimony of the medical professionals contained in the record does not definitively support the conclusion that the employee's psychological condition resulted from the contraction of scabies during her employment, a trial court is not confined to the consideration of solely the testimony of medical experts in determining causation; indeed, a trial court should consider all evidence, both lay and medical, and its own observations in making a determination of medical causation. See Ex parte Bryant, 644 So.2d 951, 952-53 (Ala. 1994). Furthermore, "a trial court may infer medical causation from circumstantial evidence consisting of the sudden appearance of an injury and symptoms immediately following a workplace trauma." Fab Arc Steel Supply, Inc. v. Dodd, 168 So.3d 1244, 1256 (Ala. Civ. App. 2015) (citing 1 Terry A. Moore, Alabama Workers' Compensation § 7:15 (2d ed. 2013)). The totality of the evidence before the trial court, viewed in the light most favorable to the employee, indicates that, since June 2012, the employee has had a firm belief that she is infested by scabies or other bugs despite the medical evidence indicating that she either was not ever or is no longer infested and that she suffers from anxiety, depression, and occasional psychoses that prevent her from functioning in a work environment. If the employee proves that she did, in fact, contract scabies such that she suffered a physical injury, the evidence recited above could form the basis of a conclusion that the employee's psychological condition is related to the contraction of scabies during her employment. Therefore, a genuine issue of material fact regarding whether the employee's alleged contraction of scabies caused her to develop delusional parasitosis or another psychological disorder exists, and the summary judgment in favor of the employer on that issue was improper.

Based on our review of the record, we have determined that the trial court erred in entering a summary judgment in favor of the employer on the employee's claim for workers' compensation benefits arising from her alleged contraction of scabies during the course of her employment and her alleged psychological injury resulting from that alleged contraction of scabies.

The evidence before the trial court was in conflict, and the trial court erred in making credibility determinations to decide the fact questions created by the evidence. The trial court's judgment is therefore reversed, and the cause is remanded for proceedings consistent with this opinion.

REVERSED AND REMANDED.

Thompson, P.J., and Pittman, Thomas, Moore, and Donaldson, JJ., concur.

      As will be discussed infra, Dr. Cash, in her testimony, discusses the diagnosis of the employee found in certain medical records, including those of Dr. Shelly Ray, whose records are not contained in the record on appeal. Dr. Cash's deposition testimony regarding the records of Dr. Ray is inadmissible hearsay because those records were not appended to Dr. Cash's deposition excerpts. See McMillan v. Wallis, 567 So.2d 1199, 1205 (Ala. 1990). The employee did not move to strike the excerpts of Dr. Cash's testimony, however, and the trial court was therefore permitted to review them in deciding the summary-judgment motion. See McMillan, 567 So.2d at 1205.

      The medical records submitted by the employee were not certified and, therefore, are inadmissible hearsay. See Barrett v. Radjabi-Mougadam, 39 So.3d 95, 98 (Ala. 2009). However, because the record does not contain a motion to strike those medical records, the trial court, and this court on appeal, may consider those records in deciding the issues on the merits. Ex parte Secretary of Veterans Affairs, 92 So.3d 771, 776-77 (Ala. 2012).


author: THOMPSON, Presiding Judge.

text:
    EX PARTE WEST FRASER, INC.
    (In re: Johnny Thomas v. West Fraser, Inc.)
    2160814
    Court of Civil Appeals of Alabama.
    September 15, 2017
    William A. Austill and Conley W. Knott of Austill Lewis Pipkin & Maddox, P.C., Birmingham, for petitioner.
    Matthew W. White of Adams White Oliver Short & Forbus, LLP, Opelika, for respondent.
   THOMPSON, Presiding Judge.

West Fraser, Inc. ("West Fraser"), petitions this court for a writ of mandamus directing the Lee Circuit Court ("the trial court") to vacate its order of June 22, 2017, entered in an action seeking benefits under the Alabama Workers' Compensation Act, § 25-5-1 et seq., Ala. Code 1975. That order was entered after a hearing on the compensability of injuries that West Fraser's employee Johnny Thomas claims he sustained while working in the line and scope of his employment. In that order, the trial court found that Thomas had "not yet reached [maximum medical improvement] and should continue to receive medical treatment to determine the source and causation of [his] injuries."

The materials submitted to this court in support of the petition indicate the following. On April 17, 2015, Thomas filed a complaint seeking workers' compensation benefits. In his complaint, Thomas asserted that, on or about May 15, 2014, he "injured his neck, back, both arms, and both legs while trying to dislodge a large log that had become stuck in the conveyor belt." He claimed that he suffered from a permanent total disability as a result of his injuries.

In its answer, West Fraser denied that Thomas was injured in a work-related accident on or about May 15, 2014. Throughout this action, West Fraser has consistently denied that Thomas was ever injured while trying to dislodge a large log. In fact, West Fraser has asserted that it did not receive notice of such an accident until it received a copy of the complaint, which was filed nearly a year after the alleged accident occurred.

The trial court held an evidentiary hearing on the issue of compensability pursuant to Ex parte Ex parte Publix Super Markets, Inc., 963 So.2d 654, 658 (Ala. Civ. App. 2007). In its petition for a writ of mandamus, West Fraser contends that, at that hearing, Thomas presented evidence indicating that his injury or injuries were the result of cumulative trauma. Before the hearing, West Fraser had filed a motion in limine to prevent Thomas from presenting evidence regarding a cumulative-trauma injury. The trial court denied that motion, as well as West Fraser's motion for a partial summary judgment as to a claim by Thomas of deterioration and/or cumulative trauma.

On June 22, 2017, after the compensability hearing, the trial court entered an order in which it recognized that the parties disagreed on the type of injury Thomas had sustained, as well as "the current source of [his] medical complaints." The trial court found that Thomas had "not yet reached [maximum medical improvement] and should continue to receive medical treatment to determine the source and causation of [Thomas's] injuries." The order did not specify which party was responsible for the payment of that treatment. West Fraser filed its petition for the writ of mandamus on July 21, 2017.

West Fraser contends that the trial court's order fails to comply with § 25-5-88, Ala. Code 1975. It also maintains that the trial court abused its discretion by allowing Thomas, during the compensability hearing, to change his claim from one seeking benefits for an accidental injury to one seeking benefits for a cumulative-trauma injury. Finally, West Fraser contends that the trial court abused its discretion by failing to dismiss Thomas's claim for an alleged work-related accident occurring on or about May 15, 2014, because, it says, Thomas failed to provide notice of such an accident within 90 days of its occurrence.

" ' " 'A writ of mandamus is an extraordinary remedy, and it will be "issued only when there is: 1) a clear legal right in the petitioner to the order sought; 2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; 3) the lack of another adequate remedy; and 4) properly invoked jurisdiction of the court." Ex parte United Serv. Stations, Inc., 628 So.2d 501, 503 (Ala. 1993). A writ of mandamus will issue only in situations where other relief is unavailable or is inadequate, and it cannot be used as a substitute for appeal. Ex parte Drill Parts & Serv. Co., 590 So.2d 252 (Ala. 1991).' "
" ' Ex parte Wilson, 854 So.2d 1106, 1108-09 (Ala. 2002) (quoting Ex parte Empire Fire & Marine Ins. Co., 720 So.2d 893, 894 (Ala. 1998) ). Section 12-3-10, Ala. Code 1975, grants this court appellate jurisdiction to issue extraordinary writs in workers' compensation cases. Ex parte Alabama Power Co., 863 So.2d 1099, 1101 (Ala. Civ. App. 2003).'
" Ex parte Sunbelt Transp., Inc., 23 So.3d 1138, 1140 (Ala. Civ. App. 2009)."

Ex parte Ward Int'l, 189 So.3d 90, 92 (Ala. Civ. App. 2015).

Furthermore, in a similar case, this court wrote:

"This court has jurisdiction to review interlocutory orders entered in workers' compensation cases when the remedy of appeal would be inadequate. See Ex parte Alabama Power Co., 863 So.2d 1099, 1102 (Ala. Civ. App. 2003)....
[T]he trial court ... required the employer to immediately provide payment of medical benefits on behalf of the employee with the employer's being subject to sanctions for its noncompliance. The employer thereafter obeyed the trial court's order and began paying the employee's medical benefits, and, presumably, it continues to do so. Awaiting review of the order by appeal would only force the employer to incur further expenses that it may not owe and that it may never recover from the employee who, as evidenced by the fact that the employer is now voluntarily paying temporary-total-disability benefits, is currently unable to earn wages. In light of those circumstances, we find that the employer's right to appeal the final judgment that will ultimately be entered in this case, which may not be entered for a year or more, is inadequate. See [ Ex parte ] Amerigas, 855 So.2d [544] at 547-48 [ (Ala. Civ. App. 2003) ] (Murdock, J., concurring in the result) (implying that an appeal would be inadequate in a similar situation)."

Ex parte Cowabunga, Inc., 67 So.3d 136, 138-39 (Ala. Civ. App. 2011).

"Generally speaking, an employee covered by the [Workers' Compensation] Act is entitled to the medical benefits set out in Ala. Code 1975, § 25-5-77, if: (1) the employee has sustained an injury due to an accident arising out of and in the course of the employment; (2) the employee notifies the employer of the accident and injury; (3) medical benefits are reasonably necessary to treat the work-related injury; and (4) medical benefits are authorized by the employer. See generally Ex parte Publix Super Markets, Inc., 963 So.2d 654, 658 (Ala. Civ. App. 2007). In Publix, this court held that, when an employer disputes the occurrence of a work-related accident and/or disputes that the work-related accident has caused or contributed to an injury for which an employee seeks medical benefits, a trial court may not order authorization and payment of those medical benefits without first resolving the dispute as to compensability via due process, which ordinarily entails an evidentiary hearing. See also Ex parte Sunbelt Transport, Inc., 23 So.3d 1138 (Ala. Civ. App. 2009) (accord)."

Ex parte City of Prattville, 56 So.3d 684, 688-89 (Ala. Civ. App. 2010).

The dispositive issue is West Fraser's argument that the trial court's order fails to comply with § 25-5-88, which requires the trial court's determination of "the controversy" to "contain a statement of the law and facts and conclusions as determined by said judge." In Cowabunga, supra, this court expounded on the requirements of § 25-5-88, writing:

"[T]he plain language of § 25-5-88 requires the making of findings of fact and conclusions of law as to every 'determination' of a controversy regarding the right to benefits under the [Workers' Compensation] Act.... By the plain terms of § 25-5-88, the trial court was required to include a conclusive finding as to every fact responsive to the issues presented to and litigated by the parties as well as a recitation of the law applicable to those facts upon which the trial court relied in reaching its determination. See Fort James Holding Co. v. Morgan, 30 So.3d 458 (Ala. Civ. App. 2009)."

Cowabunga, 67 So.3d at 139-40. In the judgment entered in Cowabunga, the trial court

"decided the controversies regarding the compensability of the employee's injury and the right of the employee to medical benefits under the [Workers' Compensation] Act, but it did not file the requisite findings of fact and conclusions of law, stating in its judgment only that the employee had sustained a personal injury due to an accident arising out of and in the course of his employment on May 29, 2009, and ordering the employer to 'approve the medical treatment recommended by the [employee's] authorized treating physician.' This court has repeatedly reversed similar judgments for failing to apprise this court of the basis for the trial court's decision as contemplated by § 25-5-88. See, e.g., Belcher-Robinson Foundry, LLC v. Narr, 42 So.3d 774 (Ala. Civ. App. 2010) ; and Grace v. Standard Furniture Mfg. Co., 29 So.3d 918 (Ala. Civ. App. 2009)."

67 So.3d at 139.

Thomas agrees with West Fraser that the order the trial court entered in this case does not address all of the controversies between the parties. The order does not include specific findings regarding the type of injury Thomas sustained, that is, whether he suffered an injury while attempting to dislodge a log, i.e., in an accident, or whether he had a cumulative-trauma injury, i.e., a nonaccidental injury. Different standards are applied in each situation. In reviewing whether an employee has proven that he or she was injured in a work-related accident, "the finding of the circuit court shall not be reversed if that finding is supported by substantial evidence." § 25-5-81(e)(2), Ala. Code 1975. To prove that an injury arose from work-related cumulative trauma, an employee must present clear and convincing evidence of legal and medical causation. Valtex, Inc. v. Brown, 897 So.2d 332, 334 (Ala. Civ. App. 2004) ; Safeco Ins. Co. v. Blackmon, 851 So.2d 532, 537 (Ala. Civ. App. 2002) ; and § 25-5-81(c), Ala. Code 1975. The trial court also did not determine whether Thomas's injury arose out of and in the course of his employment with West Fraser. In fact, the order specifically states that Thomas should "continue to receive medical treatment to determine the source and causation" of his injuries. The order does not specifically direct West Fraser to pay for that treatment.

Moreover, the trial court did not make a finding regarding whether Thomas provided West Fraser the requisite notice of his alleged injury pursuant to § 25-5-78, Ala. Code 1975. That statute provides that no compensation shall be payable unless written notice is given within 90 days after the occurrence of the accident. West Fraser has consistently maintained that it had no notice of an accident involving Thomas that occurred on or about May 15, 2014, until it received the complaint in this action nearly a year later, and it litigated that issue at the compensability hearing. Therefore, West Fraser says, the trial court had a duty to make a finding responsive to that issue in its June 22, 2017, order.

The purpose of the compensability hearing was to determine the source and cause of Thomas's injury and whether his injury was compensable. The trial court made no findings as to those issues. The trial court also failed to make a finding as to whether Thomas provided West Fraser with notice of the accident that resulted in his injury. " 'A trial court ... must make findings of fact and state conclusions of law that are responsive to the issues presented at trial. Equipment Sales Corp. v. Gwin, 4 So.3d 1125, 1129-30 (Ala. Civ. App. 2008).' " Brown v. Dixie Contracting Co., 150 So.3d 200, 203 (Ala. Civ. App. 2014) (quoting Weaver v. Pilgrim's Pride Corp., 106 So.3d 417, 419 (Ala. Civ. App. 2012) ).

In his response to West Fraser's petition for a writ of mandamus, Thomas agrees that the trial court "left unaddressed" some of the issues litigated during the compensability hearing. Thomas also agrees that the trial court misstated that the parties agreed that Thomas suffered some type of injury while dislodging a large log from a conveyor belt. Therefore, Thomas stated in his response, "parts" of the June 22, 2017, order must be "remanded" for further findings of fact and conclusions of law.

Because the trial court's June 22, 2017, order does not comply with § 25-5-88, this court grants West Fraser's petition and directs the trial court to vacate its order of June 22, 2017, and to enter an order that meets the requirements of § 25-5-88. Because the trial court has not yet determined "the source and causation" of Thomas's injuries, at this point, this court cannot provide a meaningful review of West Fraser's other contentions regarding whether the trial court abused its discretion in allowing Thomas to change his claim during the compensability hearing to allege a cumulative-trauma injury rather than an accidental injury and in failing to dismiss such a claim. The order as it is currently written makes no determination as to whether Thomas properly notified West Fraser of his purported injury or whether he can pursue a claim for cumulative-trauma injury.

PETITION GRANTED; WRIT ISSUED.

Pittman, Thomas, Moore, and Donaldson, JJ., concur.