(251) 299-0101

Workers' Compensation; Outrage; Misrepresentation; Suppression; Conspiracy

Swain v. AIG Claims, Inc., [Ms. 2180336, Oct. 18, 2019] __ So. 3d __ (Ala. Civ. App. 2019). The court (Hanson, J.; and Thompson, P.J., and Donaldson, J., concur; Moore, J., concurs in part and concurs in the result; Edwards, J., concurs in the result) reverses and remands an order of the Jefferson Circuit Court dismissing, pursuant to Ala. R. Civ. P. 12(b)(6), an injured worker's tort claims alleging outrage, misrepresentation, suppression, and conspiracy upon concluding the worker's complaint sufficiently alleged facts and circumstances meeting the predicate elements of each of those torts.

The worker claims he suffered PTSD as the result of a workplace accident that also caused physical injuries to his head, lungs, neck, back, and pelvic region. His amended complaint further alleges that he suffered additional emotional distress and anxiety when the workers' compensation insurer, adjuster, and claims manager conspired with the initial employer-designated treating physician to deprive the worker of necessary care and treatment, including psychiatric and neuropsychological care. The Jefferson Circuit Court dismissed the worker's complaint upon finding he failed to exhaust the "second opinion" requirements of § 25-5-77(a), Ala. Code 1975, and that the amended complaint failed to satisfy the elements of outrage, fraud, or conspiracy. Ms. **8-9.

Focusing upon the standard of review applicable when considering a Rule 12(b)(6) dismissal, the court first rejects the employer's contention that § 25-5-77(a) barred the worker's tort claims. Reviewing Lowman v. Piedmont Executive Shirt Manufacturing Co., 547 So. 2d 90 (Ala. 1989), and its progeny (Ms. **13-17), the court concludes the worker's amended complaint alleges that he suffered mental anguish and emotional distress as a proximate result of the defendant's post-accident handling of his workers' compensation claim such that his claims are not barred by the exclusivity provision of the Workers' Compensation Act and, under the standard of review, alleges claims where there is at least a possibility of recovery. Id., pp. 19-20.

Citing Ex parte Austal USA, LLC, 233 So. 3d 975 (Ala. 2017), which reiterated the principle that a "Rule 12(b)(6) dismissal is proper ' "only when it appears beyond doubt that the plaintiff can prove no set of facts in support of the claim that would entitle the plaintiff to relief." ' " (Ms. **22-23 quoting Austal, 233 So. 3d at 981), the court concludes the worker's amended complaint sufficiently alleges facts and circumstances to meet the predicate elements of outrage (Ms. **23-26), fraudulent misrepresentation, and suppression (Ms. **27-30), and conspiracy (Ms. **30-31). Because under the applicable standard of review the judgment dismissing the worker's tort claims pursuant to Rule 12(b)(6) was in error, the judgment of the Jefferson Circuit Court is reversed and the case is remanded for further proceedings.

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