Ex parte Burkes Mechanical, Inc., [Ms. 1180402, Dec. 6, 2019] __ So. 3d __ (Ala. 2019). A plurality of
the Court (Stewart, J.; Parker, C.J., and Bolin and Wise, JJ., concur;
Shaw, Bryan, Sellers, JJ., concur in the result; Mendheim and Mitchell,
JJ., concur in part and dissent in part) denies Burkes Mechanical Inc.’s
petition for a writ of mandamus directing the Wilcox Circuit Court to
dismiss claims of negligence, wantonness, and the tort of outrage asserted
against Burkes by Alexsie McCoy, an employee of Burkes. Burkes contended
that the claims against it were barred by the exclusive-remedy provisions
of §§ 25-5-52 and 25-5-53 of the Alabama Worker’s Compensation
Act. Ms. *3.
A petition for a writ of mandamus is the appropriate vehicle to review
a trial court’s denial of a motion to dismiss predicated on the
exclusive-remedy provisions of the Worker’s Compensation Act. Ms.
*4. The plurality opinion distinguished cases relied upon by Burkes in
support of its petition for writ of mandamus because those “cases
involved claims related to a single injury that occurred while the employees
were performing their jobs. In this case, McCoy has asserted claims based
on additional injuries that he alleges arose from conduct that occurred
following his workplace injury.” Ms. *12.
Burkes’s request to dismiss the outrage claim based on the exclusive-remedy
provisions first made in its reply brief in support of mandamus came too
late because “[a]rguments not made as a basis for mandamus relief
are waived.” Ms. *15, quoting
Ex parte Simpson, 36 So. 3d 15, 25 (Ala. 2009).