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Citing Case So. Dixon Lumber Company, Inc. Supreme Court of Alabama. Attorney s appearing for the Case Brent A.
Robertson, of the Barbour Circuit Court, to grant its motion to dismiss plaintiff David Phillips's claim alleging intentional infliction of emotional distress, otherwise known as the tort of outrage.
Phillips suffered a work-related injury while employed by M. Lumbermen's Alliance, as administrator of Dixon's workers' compensation insurance plan, handled Phillips's claim lumbermens underwriting alliance reviews benefits.
However, Phillips and Lumbermen's Alliance could not agree as to the degree of his disability and the benefits due him. Phillips filed a workers' compensation claim against Dixon in the Barbour Circuit Court.
The issue before the trial court was the percentage of Phillips's disability. On March 8,Judge Robertson entered an order granting Phillips permanent total disability benefits.
On May 20,after its post-judgment motion was denied, Dixon filed a notice of appeal to the Court of Civil Appeals. With its appeal, Dixon also posted a supersedeas bond in accord with Rule 8, Ala.
After the bond was approved, Lumbermen's Alliance discontinued making weekly workers' compensation payments to Phillips; those payments were his only source of income. On January 7,in M. Thereafter, Dixon petitioned this Court for a writ of certiorari, which was denied on May 20, Lumbermen's Alliance made no workers' compensation payments to Phillips during the pendency of appellate review of the trial court's judgment.
On January 21,Phillips sued Dixon and Lumbermen's Alliance, alleging intentional infliction of emotional distress and outrageous behavior, breach of a third-party beneficiary contract, bad faith, fraud, misrepresentation, and "prima facie tort.
The defendants responded by filing a motion to dismiss Phillips's complaint. The trial court granted the defendants' motion as to all counts, except the allegation of intentional infliction of emotional distress, or the tort of outrage.
Thereafter, the trial court denied the defendants' request to seek an appeal, by Rule 5, Ala.
On June 22,Dixon and Lumbermen's Alliance jointly petitioned for a writ of mandamus, seeking an order requiring Judge Robertson to dismiss Phillips's outrage claim.
However, on July 20,the trial court granted Dixon's motion for a summary judgment as to that claim.
Thus, Lumbermen's Alliance is now the sole petitioner in this Court. The 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.
Additionally, a writ of mandamus will not be issued if the matter complained of can ultimately be resolved by an appeal. Ex parte Spears, So. This Court has previously granted a writ of mandamus ordering a circuit judge to dismiss a plaintiff's complaint where it was clear the petitioner had a legal right to the dismissal, but we also have denied such a writ where the facts available for review were insufficient to determine whether the petitioner had a clear legal right to dismissal of the action.
See Ex parte City of Birmingham, So.Lumbermen’s Underwriting Alliance (“LUA”) and, as such, has been vested with all rights and obligations granted to and imposed upon her pursuant to Article 74 of the New York Insurance Law (“Insurance Law”).
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