Alabama Appellate Opinions Released September 2019
We are committed to sharing decisions and providing legal updates that may be beneficial to you and your teams. Included below are summaries of cases recently released by Alabama Appellate Courts. Please reach out to any member of our Appellate Practice  group with any questions.

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Alabama Appellate Opinions Released 
September 6, 2019 and September 13, 2019
Alabama Supreme Court
Court Reverses Decision Regarding Modification of Arbitration Agreement  

Blanks et al. v. TDS Telecommunications, LLC, Peoples Telephone Company, Inc. and Butler Telephone Company, Inc.

This case involved a dispute between Internet Service Providers (“ISPs”) and their customers related to an allegation that the internet service the customers received was slower than promised. The customers sought to initiate arbitration under the Terms of Service agreement governing the parties’ relationship which, at the time the alleged deficiency was discovered, contained an arbitration provision. At some point, the ISPs modified the arbitration clause to exclude customers in Alabama and Georgia from utilizing the arbitration process. Due to the modification, the ISPs refused to participate in the customers’ arbitration proceedings because they contended that the prior Terms of Service was no longer in effect. Thus, there was a question as to whether the modification was an issue of arbitrability and whether the court or the arbitrator was to answer this question. The customers contended that the parties demonstrated an intent to delegate issues of arbitrability, such as the modification of this agreement, to an arbitrator and not the trial court when they incorporated the AAA rules into the agreement. Ultimately, the trial court disagreed and denied the customers’ motion to compel arbitration. The customers appealed.

The Alabama Supreme Court held that questions of arbitrability should be decided by an arbitrator, and not the court, if there is “clear and unmistakable evidence” that the parties intended for an arbitrator to decide that issue. Applying Managed Health Care Administration, Inc. v. Blue Cross & Blue Shield of Alabama , 249 So. 3d 486 (Ala. 2017), which involved the termination of a previous agreement to arbitrate, the Court also noted that the incorporation of the AAA rules into an arbitration agreement demonstrates an intent to delegate issues of arbitrability to an arbitrator. In reaching the conclusion that the modification was an issue of arbitrability delegated to an arbitrator, the Court emphasized that it did not see any meaningful difference in the alleged termination of the agreement in Managed Health Care Administration and the alleged superseding of the agreement governing the parties’ relationship in this case. Thus, because the parties in this case incorporated the AAA rules into their arbitration agreement, there was clear and unmistakable evidence that the parties intended for an arbitrator to decide issues of arbitrability. 
Court Reverses Trial Court’s Decision Under the Interest-of-Justice Prong in Alabama’s Forum Non Conveniens Statute

Ex parte Dara Myelia Reed 

When analyzing the interest-of-justice prong under Alabama’s forum non conveniens statute, § 6-3-21.1, courts focus on whether the nexus or connection between the case and the original forum is strong enough to warrant burdening the plaintiff’s chosen forum with the case. If the forum has a weak connection to the case, the interest-of-justice prong requires that the case be transferred to a forum with a strong connection to the case. In Ex parte Reed , the threshold issue was whether the Jefferson County Circuit Court exceeded its discretion in denying a motion to transfer the underlying action to Marshall County.

The underlying action in Reed stems from a two-vehicle accident where Dara Myelia Reed’s vehicle collided with Judy Watwood’s vehicle in Marshall County. Although both the police and emergency personnel who responded to the accident were located in Marshall County and one of the two eyewitnesses resided in Marshall County, Watwood filed her Complaint in Jefferson County alleging negligence and wantonness against Reed. Reed, a resident of Jefferson County, filed a motion for change of venue under § 6-3-21.1, requesting that in the interest of justice the case be transferred to Marshall County. Reed contended that Jefferson County’s connection to this case was weak because its only connection was her residence there. However, Watwood argued that Marshall County’s connection to this case was not strong enough to warrant transfer under the interest-of-justice prong because neither party resided in Marshall County. The trial court agreed with Watwood and denied Reed’s motion, prompting Reed to petition the Alabama Supreme Court for a writ of mandamus.

On Reed’s petition, the Alabama Supreme Court noted that both Jefferson County and Marshall County were proper venues and that the plaintiff’s choice of venue is generally given great deference when more than one county is an appropriate venue. Nevertheless, the Court emphasized that the facts of each individual case drives the analysis under the interest-of-justice prong, and it will consider facts such as where the accident occurred and the residences of the parties and any interested or affected parties. In ultimately reaching the conclusion that Marshall County had a strong connection to this case, the Court noted that the accident occurred there, both the police and emergency personnel who responded to the accident were located there, and one of the two eyewitnesses resided there. Thus, the Alabama Supreme Court held that transfer to Marshall County was warranted under the interest-of-justice prong and reversed. 
Alabama Court of Civil Appeals
Court Denies Petition for Writ of Mandamus on Workers’ Compensation Matter

Ex parte Warrior Met Coal, Inc.

In this case, the claimant filed a complaint in the Tuscaloosa Circuit Court on July 28, 2017, seeking benefits pursuant to the Alabama Workers’ Compensation Act from the Alabama Workmen’s Compensation Self-Insurer's Guaranty Association, Inc. (“the Guaranty Association”), and Warrior Met Coal, Inc (“WMC”). According to the Complaint, the claimant was repeatedly exposed to loud noises, causing hearing loss in both ears due to his employment as a washer man and electrician in an underground mine. The claimant also alleged that July 25, 2017, was his last exposure to the “injurious activities and/or occupational conditions” causing his hearing loss. In his Complaint, he included a claim for permanent-disability benefits. However, the claimant was working for WMC at the time that he filed his workers’ compensation claim and continued to work for WMC after he filed his claim.

WMC filed a motion for a summary judgment arguing that the trial court lacked subject matter jurisdiction because the claim for alleged hearing loss was not ripe for adjudication. WMC contended that the claimant could not establish his “date of injury” under § 25-5-117(b) of the Alabama Code because he continued to work for WMC and would continue to be exposed to the hazards of his alleged disease. Thus, according to WMC, no final impairment rating or date of maximum medical improvement (MMI) could be determined. In response to WMC’s motion, the claimant submitted an affidavit from an expert otolaryngologist, where the expert averred that his bilateral hearing loss, which was sensorineural, is often permanent and that no further medical treatment could be reasonably anticipated to treat this hearing loss. The trial court held that the claimant presented sufficient evidence that he had reached MMI and denied WMC’s motion for summary judgment. WMC filed a petition for writ of mandamus with the Alabama Court of Civil Appeals.

The Alabama Court of Civil Appeals rejected WMC’s ripeness argument and denied its petition for writ of mandamus for three reasons. First, because hearing loss is a scheduled injury under § 25-5-57(a)(3), the Court emphasized that “[the claimant’s] ability to continue working in his former position would not, in and of itself, preclude him from establishing that he is entitled to compensation for a permanent partial disability.” Second, the Court noted that the most reasonable construction of § 25-5-117(b) is where the “date of injury” is the date of the most recent exposure to hazards of the alleged disease under the employment of the employer where the employee was most recently exposed to these hazards. This exposure would have been during the claimant’s employment with WMC. Third, the Court emphasized the fact that the claimant’s condition might worsen due to his continued exposure to the hazards does not mean that he could not establish that he had reached MMI. 
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