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).