Austal USA, LLC filed two petitions for a writ of mandamus directing the Mobile Circuit Court to dismiss certain claims asserted against it by plaintiffs Michael Keshock, Martin Osborn, Richard Fitzgerald, Tyrone Lucas, Riley Bodiford, Tommie Brandon, Justin Reed, and William White (hereinafter “Plaintiffs”). Austal operates a shipyard in Mobile, Alabama that builds naval vessels. Plaintiffs are employees of Austal who claim to have been injured while working in the course of their employment. Specifically, Plaintiffs claimed to have been injured by a tool known as a “Miller saw.” After the initial Complaint, Plaintiffs filed several Amended Complaints adding various counts against Austal. Count VII of the third amended complaint alleged a claim of “intentional misconduct,” specifically alleging that Austal had “intentionally provided Plaintiff[s] with a dangerous and defective Miller saw with the specific intent that it would cause injury to Plaintiffs.” Austal filed a separate Rule 12(b)(6) motion seeking to dismiss count VII, arguing that it was immune from the claim asserted in count VII by virtue of the exclusivity provisions of the Longshore & Harbor Workers’ Compensation Act (“LHWCA”), (33 U.S.C. § 901 et seq.), as well as the Alabama Workers’ Compensation Act, (§ 25-5-1 et seq.). The trial court denied Austal’s motion. Thereafter, Austal moved the trial court to vacate its order or certify its order for permissive appeal pursuant to Rule 5 of the Alabama Rules of Appellate Procedure.  

Plaintiffs’ fourth amended complaint restated the count VII “intentional-misconduct” claim and added five more counts, each alleging that Austal intentionally injured them. Count VIII asserted a claim of assault and battery against Austal. Count XII asserted a claim of fraud. Count XIII alleged that Austal fraudulently “suppressed, concealed, hid or withheld important facts from the Plaintiffs regarding the known safety hazards associated with the Miller Saw ... and that Austal knew the tool was unsafe and had made the conscious and deliberate decision to intentionally injure its workmen with the tool so that it could build its ships without having to incur the costs associated with finding a safer alternative method to perform the work.” Count XIV alleged that Austal “intentionally made false statements regarding the safety of the Miller saw with a conscious and deliberate intent directed to the purpose of inflicting severe emotional distress on the Plaintiffs by inducing them to use the same Miller Saws in their work that had previously caused serious injury to Plaintiffs.” Count XV alleged that Austal “intentionally suppressed, concealed, hid or withheld important facts from the Plaintiffs regarding the safety of the Miller saw with a conscious and deliberate intent directed to the purpose of inflicting severe emotional distress on the Plaintiffs by inducing them to use the same Miller Saws in their work that had previously caused serious injury to Plaintiffs.” On July 18, 2016, Austal moved to dismiss counts VIII, XII, XIII, XIV, and XV of the fourth amended complaint. Again, Austal contended that the claims were barred by the exclusivity provisions of the Alabama Workers’ Compensation Act and/or the LHWCA. 

On August 30, 2016, the trial court denied Austal’s motion to dismiss counts VIII, XII, XIII, XIV, and XV, but also certified for immediate appeal the question whether those counts asserted claims upon which relief could be granted. On September 8, 2016, Austal filed a second petition for permission to appeal or, in the alternative, for a writ of mandamus. The Alabama Supreme Court consolidated both petitions and elected to treat the two petitions for permissive appeal as petitions for the writ of mandamus. In his petition, Austal contended that the claims of Plaintiffs were barred by the exclusivity provision of the LHWCA. Austal argued that Plaintiffs’ allegations taken as a whole allege merely that each plaintiff suffered accidental injury when a tool Austal supplied them to perform their work kicked back and contacted their bodies. Thus, Austal argued, the claims of each of the plaintiffs arise from a workplace accident, for which tort liability is barred by the provisions of the LHWCA. In response, Plaintiffs contended that they indeed pleaded facts in their complaint and subsequent amendments sufficient to invoke the intent-to-injure exception to LHWCA exclusivity. 

The Court agreed with the Plaintiffs and stated, “In this case, regardless of our view on the likelihood of the plaintiffs’ ultimate ability to establish the truth of the intent-to-injure allegations, or even to survive the summary judgment stage, we cannot deny that there is at least some possibility that those allegations are true. Accordingly, the plaintiffs are entitled to at least limited discovery on the issue whether their claims are subject to the exclusivity provision of the LHWCA. Thus, Austal has not shown a clear legal right to a Rule 12(b)(6) dismissal.” Accordingly, the Court denied Austal’s petitions.

Timothy Bevel (“Bevel”) appealed from an order granting a motion to compel arbitration. In March 2015, Bevel financed the purchase of a used Bennington brand boat and a Yamaha brand boat motor from Guntersville Boat Mart, Inc., and he rented a boat slip on Lake Guntersville to dock the boat. The sale and boat-slip rental were documented by a one-page bill of sale, which contained an arbitration provision. According to Bevel, the boat was seized several months after the transaction for allegedly defaulting on payments on the boat and boat-slip rental. Bevel disputed that he owed those payments. 

Bevel sued Guntersville Boat Mart and related entities Marine Group, LLC, d/b/a Boat Mart, and JD & L Enterprises, Inc. (“Defendants”). In his complaint, Bevel asserted several claims, including breach of contract. Defendants filed a motion to compel arbitration, citing the arbitration provision in the bill of sale. Bevel argued that his claims were not subject to the arbitration provision in the bill of sale because he had not actually agreed to that provision. Bevel noted that he had not initialed a box directly below the arbitration provision, although he had signed or initialed the document in other places. Following a hearing, the matter was submitted to arbitration. Bevel appealed to the Alabama Supreme Court pursuant to Rule 4(d) of the Alabama Rules of Appellate Procedure. 

On appeal, the court noted that Bevel signed or initialed the bill of sale in two places. First, he initialed a box indicating that the boat was being sold “as is.” Second, he signed on a line at the bottom of the document regarding his receipt of the boat and the acknowledgment of the boat’s condition. He did not, however, initial the box under the arbitration provision. The arbitration provision was on the bottom half of the bill of sale. Directly below the arbitration provision is a box for the purchaser’s initials. Bevel, however, did not initial that box. Bevel argued that because he did not initial the box directly below the arbitration provision, he did not agree to that provision. The Supreme Court agreed and held that the arbitration provision at issue did not become part of the contract between the parties, and, thus, it could not be enforced against Bevel. Accordingly, the Court reversed the trial court’s order compelling arbitration, and remanded the case for further proceedings.