Ex parte Jeffrey Varoff, [Ms. 1210235, Dec. 2, 2022] __ So. 3d __ (Ala. 2022). The Court (Mitchell, J.; Parker, C.J., and Bolin, Shaw, and Sellers, JJ., concur; Mendheim, J., dissents, which Wise, Bryan, and Stewart, JJ., join) issues a writ of mandamus directing the Lee Circuit Court to grant Defendant Jeffrey Varoff’s motion for a summary judgment in a co-employee suit filed by Clifford Bufford pursuant to § 25-5-11(b) alleging removal of a safety guard.
Although Varoff did not assert immunity as an affirmative defense in his answer, the Court concludes the defense was not waived because it is “a ‘negative defense’ as opposed to an ‘affirmative defense.’ See Ex parte Gadsden Country Club, 14 So. 3d 830, 834 (Ala. 2009) (‘An affirmative defense is distinguishable from a negative defense in that an affirmative defense raises new matters that, assuming the allegations in the complaint to be true, constitute a defense to the action and have the effect of defeating the plaintiff’s claims on the merits while a negative defense simply seeks to refute an essential allegation of the plaintiff’s complaint.’).” Ms. *9, n.3.
Varoff argued because the lid or guard was removed from the machine “for the purpose of repair,” the removal could not constitute willful conduct as that term is described in § 25-5-11(c)(2). Ms. *10. A 5-4 majority of the Court agrees with Varoff and issues the writ, concluding that Varoff was immune from suit under the Act. The Court notes that Bufford “recognized that while the VSS300 was not working before he unclogged it, it appeared to be working properly after he removed the clog. It is therefore undisputed that, by unclogging the VSS300, Bufford fixed it and restored it back to a good and usable condition. In light of the plain meaning of the term ‘repair’ as discussed in Pritchett [v. State Farm Mutual Automobile Insurance Co., 834 So. 2d 785, 791 (Ala. Civ. App. 2002], we think it clear that Bufford’s unclogging of the VSS300 did in fact constitute a repair for § 25-5-11(c)(2) purposes.” Ms. *15.
Justice Mendheim’s dissent, joined by Justices Wise, Bryan, and Stewart, concludes that mandamus review was not appropriate:
The main opinion concludes that, “because there is no evidence that would support a finding that Varoff engaged in willful conduct …, Varoff is immune from liability under § 25-5-53.” ___ So. 3d at ___. However, the immunity set forth in § 25-5-53 is not a defense to a claim brought under § 25-5-11; those claims are expressly excepted from such immunity. Contrary to what the main opinion states, Varoff is not immune from liability under § 25-5-53 because Bufford failed to present substantial evidence indicating that Varoff acted with willful conduct. Rather, the immunity from civil liability afforded to Varoff under § 25-5-53 is unrelated to Bufford’s § 25-5-11 claim against Varoff, and if Varoff is not liable to Bufford, it is because Bufford failed to prove his § 25-5-11 claim. But that issue – whether Bufford has presented substantial evidence in support of his § 25-5-11 claim – does not involve immunity and is not one appropriate for mandamus review.