In a case that was orally argued in front of the Supreme Court of Alabama by one of the lawyers at Ritchey & Ritchey, P.A., the Supreme Court on a Petition for Writ of Mandamus, granted the writ finding that a one-time purchase was an insufficient basis for personal jurisdiction over an out of state company.  (Read more) In Ex parte No. 1 Steel Products, Inc., a Massachusetts corporation, No. 1 Steel Products, Inc., was sued by Garrison Steel Fabricators, Inc., an Alabama corporation, in St. Clair County, Alabama based on a purchase order for the fabrication of steel for a project in Centerville, Massachusetts.  The lawsuit alleged claims for open account, implied contract and labor and work performed. No. 1 Steel moved to dismiss the action, or in the alternative, to enter a summary judgment in No. 1 Steel’s favor asserting that the Alabama court did not have personal jurisdiction over No. 1 Steel. In addition, No. 1 Steel submitted an affidavit from a company representative noting that it went through a list of fabricators posted on a website called the Blue Book and sent emails to various companies through the Blue Book website. If a company was interested, it would contact No. 1 Steel. Garrison Steel sent a proposal to No. 1 Steel’s offices in Massachusetts which was later accepted.

In response to the motion filed by No. 1 Steel, Garrison Steel submitted an affidavit stating that sales representatives from Garrison were contacted by representatives from No. 1 Steel. A reply was filed by No. 1 Steel, which included an affidavit from a former employee of Garrison. The former employee stated that he learned of No. 1 Steel’s need for steel fabrication from his previous employer, Smith Ironworks,
a Georgia company, and that he was the one that initiated contact with No. 1 Steel. In response, Garrison Steel filed another affidavit asserting that the former employee of Garrison Steel was disgruntled. The trial court denied the motion and No. 1 Steel filed a Petition for Writ of Mandamus.

After Greg Ritchey of Ritchey & Ritchey, P.A. presented oral argument before the Supreme Court of Alabama, the petition was granted and the writ issued. The Supreme Court of Alabama determined that a petition for writ of mandamus is the appropriate manner in which to challenge a trial court’s order deciding the question of personal jurisdiction. Because there was no allegation that in personam jurisdiction was based on general contacts with the State of Alabama, the Court determined the question of whether No. 1 Steel’s contacts
with Alabama in connection with its transaction with Garrison Steel, i.e., the specific contacts, were sufficient such that No. 1 Steel should have anticipated being haled into court in Alabama. The Supreme Court of Alabama held that they were not.

The Supreme Court of Alabama found that No. 1 Steel’s contacts with Alabama consisted entirely of telephone, fax and email correspondence between it and Garrison Steel concerning the negotiation and subsequent fabrication and delivery to Massachusetts of the ordered steel. The question of which party initiated contact was hotly disputed. The Court in Ex parte Troncalli Chrysler Plymouth Dodge, Inc., 876 So. 2d 459, 465 (Ala. 2003) previously stated that fact is “of particular relevance” in determining whether an out-of-state defendant has purposefully availed itself of the privilege of conducting business activities within Alabama. However, that fact is not controlling. Vista Land &
Equip., L.L.C. v. Computer Programs & Sys., Inc., 953 So. 2d 1170, 1176 n. 3 (Ala. 2006). The Supreme Court of Alabama also held that the mere fact that an out-of-state party initiates telephone calls to Alabama or otherwise makes use of interstate forms of communications in also not controlling as such factors are secondary or ancillary and cannot alone provide the “minimum contacts” required by due process. Steel
Processors, Inc. v. Sue’s Pumps, Inc. Rentals, 622 So. 2d 910, 913 (Ala. 1993) (quoting Scullin Steel Co. v. National Ry. Utilization Corp., 676 F.2d 309, 314 (8th Cir. 1982)).

The Supreme Court determined that “[w]hat is controlling is the nature and extent of the relationship between the out-of-state defendant and the Alabama resident with which it engaged.” No. 1 Steel’s relationship with Garrison Steel was limited to a one-time purchase of goods. While it was true that No. 1 Steel purchased a customized product as opposed to off-the-shelf goods, that fact, alone, did not
merit the Supreme Court of Alabama to deviate from established case law. The Supreme Court noted that in previous cases it has “explicitly recognized that a one-time contract for the purchase of goods is an insufficient basis for jurisdiction,” citing Vista Land &
Equip., L.L.C. v. Computer Programs & Sys., Inc., 953 So. 2d at 1177, and the Supreme Court reaffirmed that principle. Based on the foregoing, No. 1 Steel’s petition for writ of mandamus was granted and the trial court was directed to enter an order
dismissing the action filed by Garrison Steel against No. 1 Steel because the court lacked personal jurisdiction over No. 1 Steel.

Except as provided in this chapter, no employee of any employer subject to this chapter, nor the personal representative, surviving spouse, or next of kin of the employee shall have a right to any other method, form, or amount of compensation or damages for an injury or death occasioned by an accident or occupational disease proximately resulting from and while engaged in the actual performance of the duties of his or her employment and from a cause originating in such employment or determination thereof.

Ala. Code 1975, § 25-5-52.

The rights and remedies granted in this chapter to an employee shall exclude all other rights and remedies of the employee, his or her personal representative, parent, dependent, or next of kin, at common law, by statute, or otherwise on account of injury, loss of services, or death. Except as provided in this chapter, no employer shall be held civilly liable for personal injury to or death of the employer’s employee, for purposes of this chapter, whose injury or death is due to an accident or to an occupational disease while engaged in the service or business of the employer, the cause of which accident or occupational disease originates in the employment. In addition, immunity from civil liability for all causes of action except those based upon willful conduct shall also extend to the workers’ compensation insurance carrier of the employer; to a person, firm, association, trust, fund, or corporation responsible for servicing and payment of workers’ compensation claims for the employer; to an officer, director, agent, or employee of the carrier, person, firm, association, trust, fund, or corporation; to a labor union, an official, or representative thereof; to a governmental agency providing occupational safety and health services, or an employee of the agency; and to an officer, director, agent, or employee of the same employer, or his or her personal representative. Nothing in this section shall be construed to relieve a person from criminal prosecution for failure or neglect to perform a duty imposed by law.

Ala. Code 1975, § 25-5-53.

The origin of the complete immunity provided to employers and the limited immunity provided to co-employees by the Act is made clear in Ala. Code 1975, § 25-5-14:

The legislature finds that actions filed on behalf of injured employees against officers, directors, agents, servants or employees of the same employer seeking to recover damages in excess of amounts received or receivable from the employer under the workers’ compensation statutes of this state and predicated upon claimed negligent or wanton conduct resulting in injuries arising out of and in the course of employment are contrary to the intent of the legislature in adopting a comprehensive workers’ compensation scheme and are producing a debilitating and adverse effect upon efforts to retain existing, and to attract new industry to this state. Specifically, the existence of such causes of action places this state at a serious disadvantage in comparison to the existing laws of other states with whom this state competes in seeking to attract and retain industrial operations which would provide better job opportunities and increased employment for people in this state. The existence of such causes of action, and the consequent litigation resulting therefrom, results in substantial costs and expenses to employers which, as a practical matter, must either procure additional liability insurance coverage for supervisory and management employees or fund the costs of defense, judgment or settlement from their own resources in order to retain competent and reliable personnel. The existence of such causes of action has a disruptive effect upon the relationship among employees and supervisory and management personnel. There is a total absence of any reliable evidence that the availability of such causes of action has resulted in any reduction of the number or severity of on-the-job accidents or of any substantial improvement on providing safe working conditions and work practices. The intent of the legislature is to provide complete immunity to employers and limited immunity to officers, directors, agents, servants or employees of the same employer and to the workers’ compensation insurance carrier and compensation service companies of the employer or any officer, director, agent, servant or employee of such carrier or company and to labor unions and to any official or representative thereof, from civil liability for all causes of action except those based on willful conduct and such immunity is an essential aspect of the workers’ compensation scheme.

See also Ala. Code 1975, § 25-5-11 (injured party may proceed against employer and third party at the same time, but if the third party is a co-employee, the injury complained of must be the result of willful conduct).

The Act is the sole remedy for an employee injured while engaged in the duties of the employee’s job, except under certain circumstances.  The attorneys at Ritchey & Ritchey, P.A. are highly capable of assisting in the defense of such claims.

Many employers are faced with claims of sexual harassment in the workplace.  While the claims are serious, if an employer has taken steps to protect against sexual harassment, it will be in a better position to defend itself.  Ritchey & Ritchey, P.A. has successfully argued summary judgment motions for an employer, even where the accusations involved a supervisor.  In a case that was pending in the U.S. District Court of Alabama, located in Montgomery, Alabama, an employee filed a Title VII lawsuit alleging quid pro quo (tangible employment action) and hostile work environment sexual harassment and that the plaintiff was constructively discharged. The civil action was filed by a Birmingham, Alabama law firm for an Andalusia plaintiff. The plaintiff alleged that her supervisor sexually harassed her for over two (2) years. The plaintiff filed suit against her employer, as well as against her immediate supervisor. After depositions were taken, the employer and supervisor moved for summary judgment.

The District Court found that after being hired, the plaintiff received an employee handbook, which included the Employer’s policy on harassment and discrimination and watched an orientation video related to sexually harassment at work. The policy encouraged
employees to report incidents of harassment to the regional manager, employee relations director, or human resources manager. The employees were also given a toll-free complaint number to anonymously report incidents of sexual harassment.

The plaintiff claimed that the sexual harassment continued the entire two (2) years she was employed which forced her to submit a letter of resignation.  In the resignation letter, she only stated the reason she was leaving was because the job no longer held her interest and
she was no longer happy at her workplace. Shortly after the plaintiff submitted her resignation, she told a co-employee she intended to sue the employer for sexual harassment.  The co-employee notified her supervisor that the plaintiff intended to sue for sexual harassment. The supervisor notified his supervisor who, in turn, notified the employer’s human resources department. The human resources department began an immediate investigation and sent a regional supervisor to interview the plaintiff in private. During the interview, the plaintiff never complained that any alleged sexual harassment was a reason for her leaving. The regional supervisor asked the plaintiff to send an email with her reasons for leaving. In the plaintiff’s email to the regional supervisor, she stated her reason for leaving was because her husband wanted her to stay home. The employer also conducted a further investigation by questioning other females in the office. The other females denied they had witnessed any sexual harassment or had been subjected to any incidences of sexual harassment while working .

While the plaintiff was working out her two (2) weeks notice, the plaintiff’s immediate supervisor confronted her in front of co-workers and accused her of recording a conversation with another person. The plaintiff worked the remainder of the day and then did not return
to work out her two (2) weeks’ notice. The plaintiff later filed a charge of discrimination with the EEOC and, after obtaining a right to sue letter, filed her civil action.

The plaintiff claimed she was subjected to quid pro quo (tangible employment action) and hostile work environment sexual harassment. To prove tangible employment action sexual harassment in violation of Title VII, the plaintiff had the burden of proving that the harassment culminated in a “tangible employment action” against her. A tangible employment action constitutes a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a
significant change in benefits. The Court concluded that the plaintiff failed to establish a prima facie case of tangible employment action sexual harassment as she could not prove she suffered a tangible employment action for refusing to respond to her supervisor’s sexual demands.

The Court also determined that the plaintiff failed to establish a prima facie case of hostile work environment. The Court determined that a defendant can avoid liability by establishing the Faragher-Ellerth defense to show that the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior and that the employee unreasonably failed to take advantage of any preventive
or corrective opportunities that the employer provided. The Court found that the plaintiff failed to take advantage of the employer’s preventative measures and that the employer established both elements of the Faragher-Ellerth defense. While the plaintiff also claimed she was constructively discharged, the Court determined that while the recording of a conversation was a dischargeable offense, there was no official act to terminate, demote, or otherwise exercise company authority which precipitated a constructive discharge under Title VII. Based on the forgoing, a summary judgment was granted in the employer’s favor.

Employers should consider taking steps to prevent sexual harassment in the workplace.  The attorneys at Ritchey & Ritchey, P.A. can assist companies in finding ways to establish and implement policies and procedures to help prevent harassment in the workplace.

In the manufactured housing segment of its practice, the lawyers of Ritchey & Ritchey, P.A.  have represented manufactured housing dealers, manufacturers, transporters, installers and finance companies for over 40 years including, among others,  Champion Home Builders Co., Redman Homes, Inc., Homes of Legend, Inc., Chandeleur Homes, Inc., Homes of Merit, Inc., River Birch Homes, Inc., Kabco Builders, Inc., Lexington Homes, Inc., Star Fleet, Inc., GE Capital Corporation-Special Products Division (Alabama), BankAmerica Housing Services, a division of BankAmerica FSB, Bank of America, NT & SA, Bank Of America, N.A., Gulf Coast Bank And Trust Co., Union Planters National Bank, GreenPoint Credit LLC, Green Tree Servicing, LLC and CIT Group/Sales Financing, Inc.

¹ An AV® certification mark is a significant rating accomplishment – a testament to the fact that a lawyer’s peers rank him or her at the highest level of professional excellence.

Greg is an AV^® Preeminent^™ rated attorney, the highest possible Martindale-Hubbell Peer Review Rating, which is based on surveys of attorneys and the judiciary.  An AV® Preeminent™ Peer Review Rating is an outstanding achievement and demonstrates that a lawyer has earned the highest rating available for their legal ability and professional ethics.  Greg was also listed in B-Metro magazine as one of Birmingham’s “Top Lawyers” in its March 2010 edition.

Ritchey & Ritchey, PA was formed in 1959 and is celebrating over 50 years of legal service in Birmingham and throughout Alabama.  During its lengthy existence, Ritchey & Ritchey, P.A. has enjoyed the privilege of representing clients in a wide range of practice areas including insurance defense, family law, real estate, contracts, business organization, products liability defense, personal injury, wrongful death, manufactured housing defense, fire related property and injury defense, appellate practice, commercial litigation, mold litigation, construction defense, mediation, commercial transportation, warranty defense, employment issues, licenses, creditor’s rights, bankruptcy and arbitration issues.   Its attorneys are counsel for Travelers Property Casualty, Lincare Inc., General Electric Capital Corporation-Special Products Division (State of Alabama), BankAmerica Housing Services, The CIT Group, General Electric Fleet Services, Inc. and hundreds of small businesses throughout the State of Alabama.  Ritchey & Ritchey, P.A.’s success if founded on its attorneys’ ability to evaluate cases to efficiently work toward resolution instead of protracted litigation. Office staff utilize the latest technology, including electronic file management, electronic billing, email communication, etc. in order to reduce expenses related to legal services.