In re Varoff

380 So.3d 371

EX PARTE Jeffrey VAROFF

(In re: Clifford Bufford

v.Ed Bledsoe et al.)

1210235

Supreme Court of Alabama.

December 2, 2022

Rehearing Denied January 13, 2023

William A. Scott, Jr., Dylan P. Angeline, Grant E. Reese, and Robert M. Ronnlund of Scott, Sullivan, Streetman & Fox, P.C., Birmingham, for petitioner.

Matthew W. White, Opelika, for respondent.

MITCHELL, Justice.

After Clifford Bufford, an employee of Borbet Alabama, Inc., injured his left arm in a workplace accident, he sued seven of his co-employees claiming that his injury was the result of their willful conduct. The co-employees sought summary judgment, arguing that they were immune from suit under Alabama’s Workers’ Compensation Act ("the Act"), § 25-5-1 et seq., Ala. Code 1975, because, they said, there was no evidence to support Bufford’s claims. Bufford voluntarily dismissed his claims against all the defendants except the petitioner, maintenance supervisor Jeffrey Varoff. The Lee Circuit Court then denied Varoff’s motion for summary judgment. He now asks this Court for a writ of mandamus directing the trial court to enter judgment in his favor on the basis of the immunity afforded by the Act. We grant the petition and issue the writ.

Facts and Procedural History

Bufford worked as a maintenance technician at the Borbet wheel-manufacturing facility in Auburn for about 12 years. One of his duties was servicing the recycling system that transformed metal chips and shavings created during manufacturing back into usable material. As part of that recycling process, scrap metal was deposited into the recycling system, where it was cleaned and sorted before entering the VSS300, a large box-shaped machine with an auger at the bottom. The auger and a vacuum then pulled the scrap metal through the VSS300 as the metal continued on toward the foundry, where it was melted down and purified.

The VSS300 stopped working with some regularity; Bufford says that he typically had to service it two or three times a week. A common problem for the VSS300 was a clog causing a loss of suction around the auger. Employees remedied this by turning off the power to the system at the main panel, then removing the lid of the VSS300 and manually removing the scrap metal and any foreign objects that might be creating the clog. The employee then turned the power to the system back on at the main panel and returned to the VSS300 to verify whether the system now had suction. If suction was restored, the employee then turned off the power again and replaced the VSS300’s lid before powering the system on a final time and placing the recycling system back online.

On the day of his accident, Bufford was notified by radio that the VSS300 needed servicing. When he went to the machine, he recognized that it was clogged. He therefore shut off the power at the main panel and began removing material from the machine.¹ Once he was done, he turned the power back on and returned to the VSS300 to determine if suction had been restored. While looking into the machine, he rested his left arm on the edge so that he could peer in and listen for the vacuum. Somehow, Bufford’s sleeve was caught by the auger’s tip and his arm was pulled into the machine, where it was twisted and cut by the auger. Bufford suffered injuries to his hand and forearm that have since required multiple surgeries.

Bufford filed a claim against Borbet for workers’ compensation benefits; that claim was ultimately settled. Those benefits are generally an employee’s only remedy for an on-the-job injury, see § 25-5-53, Ala. Code 1975, but Bufford later sued seven of his co-employees under § 25-5-11(b), Ala. Code 1975, which provides an exception to that rule when an employee’s injuries are caused by a co-employee’s "willful conduct." Bufford specifically alleged that his co-employees had committed willful conduct "by removing and/or altering the safety guards and devices on the VSS300 machine and knowingly requiring [him] to perform his job duties without this equipment." See § 25-5-11(c)(2), Ala. Code 1975 (defining "willful conduct" to include "[t]he willful and intentional removal from a machine of a safety guard or safety device provided by the manufacturer of the machine with knowledge that injury or death would likely or probably result from the removal"). The safety guard that was allegedly removed was the VSS300’s lid.

After extensive discovery, the co-employees moved the trial court to enter summary judgment in their favor, arguing among other things that Bufford’s claim of willful conduct was not supported by the evidence and that, "[a]bsent such willful conduct, the co-employees have complete immunity from civil liability from all causes of action." Motion for summary judgment, p. 6 (citing Powell v. United States Fid. & Guar. Co., 646 So. 2d 637, 638 (Ala. 1994)).² They first argued that there was no evidence indicating that any of them had removed the lid to the VSS300. And, second, they argued that removal of the VSS300’s lid had been done for the purpose of repairing the machine and that the removal therefore could not constitute willful conduct under § 25-5-11(c)(2), which expressly precludes a finding of willful conduct when a safety device or guard was removed "for the purpose of repair of the machine."

Before filing a response, Bufford dismissed his claims against all his co-employees except Varoff. Bufford then filed a response maintaining his position that Varoff’s knowledge of the allegedly unsafe procedure for servicing the VSS300 rendered him liable under § 25-5-11(b). See, e.g., Harris v. Gill, 585 So. 2d 831, 837 (Ala. 1991) (explaining that a supervisor could be liable under § 25-5-11 when he or she has knowledge that a safety guard has been bypassed because "to hold otherwise would contravene public policy; it would allow supervisory employees to instruct their employees to perform a certain operation after a safety device related to that operation had been removed"). Bufford further argued that simply unclogging the VSS300 was not a "repair’" for § 25-5-11(c)(2) purposes and that, in any event, he had already removed the clog and completed any "repair" at the time he was injured.

Following a hearing, the trial court denied Varoff’s summary-judgment motion, holding that there were material questions of fact about "whether Bufford’s actions constitute ‘maintenance,’ ‘repair,’ or simply ‘unclogging/unjamming’; whether that activity had been completed when he was injured; [and] Varoff’s knowledge (or lack thereof) of various practices as to the running of the machine . .. " Varoff now petitions this Court for mandamus review.

Standard of Review

[1, 2] This Court typically does not conduct mandamus review of a trial court’s denial of a motion for summary judgment. Ex parte Simpson, 36 So. 3d 15, 22 (Ala. 2009). But an exception exists when summary judgment has been sought on immunity grounds. Id. Here, the Act expressly immunizes employees from suits by their co-employees stemming from on-the-job accidents unless there is some evidence of the defendant employee’s willful conduct. See § 25-5-53 (explaining that the rights and remedies granted injured employees by the Act generally "exclude all other rights and remedies of the employee" and that "immunity from civil liability for all causes of action except those based upon willful conduct shall also extend .. to an … employee of the same employer" (emphasis added)); see also Powell v. United States Fid. & Guar. Co., 646 So. 2d at 638 ("In 1985 . . the legislature passed Act 85-41, Ala. Acts 1985, which extensively amended [the Act] and added to it a qualified immunity for all co-employees."). Mandamus review is therefore appropriate to the extent Varoff argues he was entitled to summary judgment based on the immunity afforded by the Act. See also Ex parte Salvation Army, 72 So. 3d 1224, 1227-28 (Ala. Civ. App. 2011) (reviewing this Court’s precedent and rejecting the contention "that the denial of a summary-judgment motion grounded on a claim of immunity under the exclusive-remedy provisions [of the Act], as opposed to some other types of immunity, is not reviewable by mandamus petition").

[3–5] Accordingly, Varoff bears the burden of establishing (1) a clear legal right to immunity under the Act; (2) that the trial court has refused to enter a judgment in his favor on that basis; (3) the lack of another adequate remedy; and (4) the properly invoked jurisdiction of this Court. Ex parte KKE, LLC, 295 So. 3d 26, 29 (Ala. 2019) (setting forth the mandamus standard). The only disputed issue before us is whether Varoff is entitled to immunity under the Act or whether Bufford’s claim against him falls within the willful-conduct exception to that immunity.³ We therefore focus our inquiry on that issue.

Analysis

[6] Employees injured in on-the-job accidents are generally limited to recovering workers’ compensation benefits from their employer in accordance with the Act. See Richardson v. PSB Armor, Inc., 682 So. 2d 438, 440 (Ala. 1996) ("The [Act] provides an exclusive remedy for the employee injured in a workplace accident …."). But § 25-5-11(b) provides that "[i]f personal injury … to any employee results from the willful conduct … of any … employee of the same employer .. , the employee shall have a cause of action against the person . . " (Emphasis added.) Section 25-5-11(c) defines what constitutes "willful conduct" for purposes of this exception. Among other things, it includes "[t]he willful and intentional removal from a machine of a safety guard or safety device provided by the manufacturer of the machine with knowledge that injury or death would likely or probably result from the removal." § 25-5-11(c)(2). But "removal of a guard or device shall not be willful conduct unless the removal did, in fact, increase the danger in the use of the machine and was not done for the purpose of repair of the machine." Id. (emphasis added).

Varoff says that it...