Ex parte Associated General Contractors Workers' Compensation Self-Insurers Fund, Alabama Branch

227 So. 3d 528, 2017 WL 65340
CourtCourt of Civil Appeals of Alabama
DecidedJanuary 6, 2017
Docket2160120
StatusPublished

This text of 227 So. 3d 528 (Ex parte Associated General Contractors Workers' Compensation Self-Insurers Fund, Alabama Branch) is published on Counsel Stack Legal Research, covering Court of Civil Appeals of Alabama primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Ex parte Associated General Contractors Workers' Compensation Self-Insurers Fund, Alabama Branch, 227 So. 3d 528, 2017 WL 65340 (Ala. Ct. App. 2017).

Opinion

DONALDSON, Judge.

Associated General Contractors Workers’ Compensation Self-Insurers Fund, Alabama Branch (“the AGC Fund”), and Good Hope Contracting, Inc. (“Good Hope”), petition this court for a writ of mandamus directing the Cullman Circuit Court (“the trial court”) to vacate an order transferring the action to Jefferson County, to reinstate the action in Cullman Cóunty, and to enter an order denying Lynn Harding’s motion to dismiss based on improper venue or, alternatively, to transfer the action. Harding did not file a response to the petition with this court. For the reasons set forth below, we grant the petition and issue the writ.

Background

On June 29, 2016, the AGC Fund filed a complaint against Harding in the trial court seeking a judgment declaring that Harding was not entitled to benefits under the Workers’ Compensation Act, codified at § 25-5-1 et seq., Ala. Code 1975., According to the allegations in the complaint, the AGC Fund is a pooled-risk self-insurer fund in accordance with §§ 25-5-8 and -9, Ala. Code 1975, of the Workers* Compensation Act, and the AGC Fund, which has corporate offices in Jefferson County, provided workers’ compensation coverage through a written agreement to Good Hope, which has its principal place of business in Cullman County. Good Hope was named as Harding’s employer. The AGC Fund further alleged that Harding had made a. claim for-workers’ compensation benefits with Good Hope, that the claim had been forwarded to the AGC Fund, and that the AGC Fund disputed -Harding’s asserted entitlement to workers’ compensation benefits.

On August 2, 2016, Harding filed a “Motion to Dismiss for Improper Venue or in the Alternative, Motion to Transfer Venue to Jefferson County.” The motion states the following:

“1. This is a workers[’] compensation case where [Harding’s] employer’s Workers’ Compensation self-insured fund, [the AGC Fund], sued [Harding] in a complaint for Declaratory Judgment.
“2. To dismiss this action on the ground that it is brought in the wrong county because (a) [Harding] is an individual and venue is- only proper in his county of residence or the county where the accident occurred. Ala. Code § 6-3-2 (1975).
“3. [Harding] is an individual - residing in Jefferson County, Alabama ... and the action that forms the basis of [the AGC Fund’s] complaint occurred in Walker County,.Alabama,... Therefore the correct venue is either Jefferson or Walker County.
“4. [Harding] requests that if this action is not dismissed that it be transferred to Jefferson County, Alabama.”

Harding supported his motion with an affidavit in which he testified:

“1. My name is Lynn Harding and I am the Defendant in this case. ...
“2. On or about August 26, 2015, I was injured on the-job while working for [Good Hope], Said accident occurred on a job site in Walker County, Alabama.
[531]*531“3. At the time of said injury I lived at ... Kimberly, Alabama ... in Jefferson County, Alabama. I still live at said ad- . dress.”

On August 5, 2016, Harding'filed an answer denying the AGC Fund’s allegations regarding his claim for workers’ compensation benefits and asserting improper venue as an affirmative defense. Harding alleged a counterclaim against the AGC Fund and a cross-claim against Good Hope seeking workers’ compensation benefits. In those claims, Harding alleged that he was injured in Walker County working within the- scope of his employment with Good Hope and other facts purporting to show that he was entitled to workers’ compensation benefits. Harding also alleged that his employment was wrongfully terminated on December 16, 2015, because he was pursuing his workers’ compensation claim, and he alleged a claim of retaliatory discharge against Good Hope. The AGC Fund and Good Hope both filed answers denying liability for workers’ compensation benefits, and, in its answer, Good Hope denied the allegations supporting Harding’s retaliatory-discharge claim.

On October 12, 2016, the AGC Fund filed a response to Harding’s motion, arguing that Harding incorrectly asserted that § 6-3-2, Ala. Code 1976, pertaining to venue in civil actions against individuals, applied to the workers’ compensation action. The AGC Fund asserted that venue for the action was governed by the venue provisions in the Workers’ Compensation Act and § 6-3-7, Ala. Code 1975, the statute pertaining to venue in civil actions against corporations. The AGC Fund supported its response with the affidavits of Danny Hall, a risk manager for Good Hope, and Zachary D. Spanick, a supervisor for Good Hope, who both testified that Good Hope was a domestic Alabama corporation with its principal place of business in Cullman County. Good Hope. filed a response to Harding’s motion -in which it joined the AGC Fund’s response and incorporated .its arguments. In its motion, Good Hope additionally asserted that venue was proper in Cullman County based on the retaliatory-discharge cross-claim -filed by Harding against Good Hope.

On October 14, 2016,» after conducting a hearing on Harding’s motion to dismiss or transfer and the responses from the AGC Fund and Good Hope, the trial court entered an order transferring the case in its entirety to the Jefferson Circuit Court. On November 18, 2016, the AGC Fund and Good Hope jointly filed the present petition for a writ of mandamus to this court. Upon. the - petitioners’ motion, we .stayed the execution of the October 14, 2016, order and other proceedings in the trial court pending a ruling on- this petition.

Standard of Review

“A petition for the writ of mandamus is the appropriate means by which to challenge a trial court’s order regarding a change of venue. Ex parte Sawyer, 892 So.2d 898, 901 (Ala. 2004). The writ of mandamus is an extraordinary remedy; it will not be issued unless the petitioner shows ‘ “ ‘(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 Inverness Constr. Co., 775 So.2d 153, 156 (Ala. 2000) (quoting Ex parte Gates, 675 So.2d 371, 374 (Ala. 1996)); Ex parte Pfizer, Inc., 746 So.2d 960, 962 (Ala. 1999).”

Ex parte Children’s Hosp. of Alabama, 931 So.2d 1, 5-6 (Ala. 2005).

“‘The burden of proving improper venue is. on the party raising the issue and on review of an order transferring [532]*532or refusing to transfer, a writ of mandamus will not be granted unless there is a clear showing of error on the part of the trial judge.’ Ex parte Finance America Corp., 507 So.2d 458, 460 (Ala. 1987). In addition, this Court is bound by the record, and it cannot consider a - statement or evidence in a party’s brief that was not before the trial court. Ex parte American Res. Ins. Co., 663 So.2d 932, 936 (Ala. 1995).”

Ex parte Pike Fabrication, Inc., 859 So.2d 1089, 1091 (Ala. 2002).

Discussion

In his motion to dismiss the case or, alternatively, to transfer the case to the Jefferson Circuit Court, Harding relied upon § 6-3-2, which generally governs venue in actions against individuals.

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Related

Ex Parte Finance America Corp.
507 So. 2d 458 (Supreme Court of Alabama, 1987)
Ex Parte Sawyer
892 So. 2d 898 (Supreme Court of Alabama, 2004)
Ex Parte Children's Hospital of Alabama
931 So. 2d 1 (Supreme Court of Alabama, 2005)
Ex Parte Inverness Construction Company
775 So. 2d 153 (Supreme Court of Alabama, 2000)
Ex Parte Pike Fabrication, Inc.
859 So. 2d 1089 (Supreme Court of Alabama, 2002)
Ex Parte American Resources Ins. Co., Inc.
663 So. 2d 932 (Supreme Court of Alabama, 1995)
Ex Parte Gates
675 So. 2d 371 (Supreme Court of Alabama, 1996)
Batey & Sanders, Inc. v. Dodd
755 So. 2d 581 (Court of Civil Appeals of Alabama, 1999)
Ex Parte Pfizer, Inc.
746 So. 2d 960 (Supreme Court of Alabama, 1999)
Fleet Force, Inc. v. Adams
11 So. 3d 243 (Court of Civil Appeals of Alabama, 2008)
Rodriguez-Flores v. U.S. Coatings, Inc.
133 So. 3d 874 (Supreme Court of Alabama, 2013)

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Bluebook (online)
227 So. 3d 528, 2017 WL 65340, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ex-parte-associated-general-contractors-workers-compensation-self-insurers-alacivapp-2017.