Opinion
1200351
05-07-2021
EX PARTE VENTURE EXPRESS, INC. (In re: Gina Barfoot Sellers v. Venture Express, Inc. )
Petition for Writ of Certiorari to the Court of Civil Appeals (Cullman Circuit Court, CV-17-900316, Greg A. Nicholas, Judge; Court of Civil Appeals, 2190165) Charles H. Clark, Jr., and Justin H. Nolen of Clark, May, Price, Lawley, Duncan & Paul, LLC, Birmingham, for petitioner. Submitted on certiorari petition only.
Petition for Writ of Certiorari to the Court of Civil Appeals (Cullman Circuit Court, CV-17-900316, Greg A. Nicholas, Judge; Court of Civil Appeals, 2190165)
Charles H. Clark, Jr., and Justin H. Nolen of Clark, May, Price, Lawley, Duncan & Paul, LLC, Birmingham, for petitioner.
Submitted on certiorari petition only.
BRYAN, Justice.
WRIT DENIED. NO OPINION.
Parker, C.J., and Bolin, Wise, Sellers, Mendheim, and Stewart, JJ., concur.
Shaw and Mitchell, JJ., concur specially.
SHAW, Justice (concurring specially).
In its petition, Venture Express, Inc., seeks certiorari review of the Court of Civil Appeals' decision in Sellers v. Venture Express, Inc., [Ms. 2190165, Feb. 12, 2021] ––– So. 3d ––––, 2021 WL 520902 (Ala. Civ. App. 2021), which held that an agreement between Venture Express and its employee, Gina Barfoot Sellers, violated public policy. An explanation of the pertinent facts and issues in this case is contained in Justice Mitchell's special writing.
The agreement at issue states:
" ‘AGREEMENT AS TO JURISDICTION AND NOTICE AS TO TENNESSEE WORKERS' COMPENSATION LAW
" ‘THIS NOTICE CONTAINS LANGUAGE WHICH WILL BECOME PART OF A SEPARATE CONTRACT WHICH YOU WILL SIGN AS A CONDITION OF EMPLOYMENT. THIS NOTICE AND CONTRACT REFERRED TO IN THE PRECEDING SENTENCE EFFECTS [sic] YOUR RIGHTS, LIABILITIES AND OBLIGATIONS IN THE EVENT THAT YOU SUSTAIN AN INJURY BY ACCIDENT ARISING OUT OF AND IN THE COURSE OF YOUR EMPLOYMENT WITH [VENTURE EXPRESS]. YOU ARE URGED TO READ THIS NOTICE AND CONTRACT CAREFULLY AND IN ITS ENTIRETY.
" ‘[Venture Express] is a corporation with a place of business in Tennessee, and licensed to do business in the state of Tennessee. Therefore, a Tennessee employer is hiring you and your employment is principally localized in Tennessee. Although your job duties with and for [Venture Express] may be located in states other than Tennessee and though an injury giving rise to workers' compensation claims may occur in a state other than Tennessee, you hereby
agree that any claim you ... submit for workers' compensation benefits will be governed both substantively and procedurally[ ] by Tennessee law and in accordance with the provisions of [the] Tennessee Workers' Compensation Act. Moreover, you are aware that any and all workers' compensation claims that you may have arising out of employment and/or operation of a motor vehicle with [Venture Express] will be exclusively governed by the law of the State of Tennessee, as this is not a seriously inconvenient forum.’ "
The agreement, by its terms, appears to be part of the employment contract between Venture Express and Sellers.
The agreement appears to be a choice-of-law clause. Such a clause is "[a] contractual provision by which the parties designate the jurisdiction whose law will govern any disputes that may arise between the parties." Black's Law Dictionary 304 (11th ed. 2019). The law of this state "has long recognized the right of parties to an agreement to choose a particular state's laws to govern an agreement." Cherry, Bekaert & Holland v. Brown, 582 So. 2d 502, 506 (Ala. 1991). We do not, however, enforce such a clause if the law of the selected forum violates Alabama public policy. Id. at 507 ("While parties normally are allowed to choose another state's laws to govern an agreement, where application of that other state's laws would be contrary to Alabama policy, the parties' choice of law will not be given effect and Alabama law will govern the agreement."). There is no indication in this case regarding whether the application of Tennessee's workers' compensation laws to Sellers's claims would violate Alabama public policy or would result in a denial of workers' compensation benefits. Further, I am not convinced that a choice-of-law clause is per se prohibited by Ala. Code 1975, § 25-5-35, the statute discussed and relied upon by the Court of Civil Appeals. However, the arguments in Venture Express's petition for certiorari review are not sufficient to demonstrate a probability of merit, i.e., that the Court of Civil Appeals erred to the extent that court held otherwise. See Rule 39(f), Ala. R. App. P. ("If the Supreme Court, upon preliminary consideration, concludes that there is a probability of merit in the petition and that the writ should issue, the Court shall so order ....")
I do disagree with the proposition alluded to by the Court of Civil Appeals and in Venture Express's certiorari petition that the agreement attempted to oust the trial court of jurisdiction. Alabama courts routinely adjudicate cases under foreign law when choice-of-law clauses are enforced or when otherwise required. Additionally, to the extent that the agreement might be a forum-selection clause, it "implicates the venue of a court rather than its jurisdiction." Ex parte Rymer, 860 So. 2d 339, 341 (Ala. 2003) ; see also Ex parte Terex USA, LLC, 260 So. 3d 813, 816 (Ala. 2018).
Although the agreement suggests that the parties consented to having Tennessee's workers' compensation laws govern Sellers's claims and reflects that the parties agreed that Tennessee was "not a seriously inconvenient forum," the language of the agreement does not otherwise appear to actually require Sellers to file her claims in that forum.
In light of the above, although it is not clear to me whether parties may contractually agree to have the laws of another forum govern a workers' compensation claim, I concur to deny Venture Express's certiorari petition and await a future case to properly raise and settle this issue.
MITCHELL, Justice (concurring specially).
Gina Barfoot Sellers was injured in an automobile accident in Alabama while working as a truck driver for Venture Express, Inc. Sellers's employment agreement with Venture Express contained a provision addressing the applicable law for workers' compensation disputes. In that provision, the parties agreed that any workers' compensation claims Sellers might bring would "be governed both substantively and procedurally[ ] by Tennessee law." The employment agreement also provided that Sellers's employment was principally localized in Tennessee.
Both the Court of Civil Appeals' opinion and Venture Express's certiorari petition additionally characterize the relevant provision in the employment agreement as a forum-selection clause. But the provision never specifically says that disputes must be litigated in a forum in Tennessee. It merely says that "all workers' compensation claims ... will be exclusively governed by the law of the State of Tennessee, as this is not a seriously inconvenient forum." (Emphasis added.) I therefore analyze the provision here purely as a choice-of-law provision, though similar reasoning would likely apply if the provision did in fact clearly specify the forum for litigation. And in any event, while it appears the trial court dismissed the case on forum-related grounds, it would have been entitled to dismiss the case under an enforceable choice-of-law provision because Sellers asserted her claim under the wrong state's statute.
After Sellers was injured, she filed a claim against Venture Express under the Alabama Workers' Compensation Act, § 25-5-1 et seq., Ala. Code 1975, in the Cullman Circuit Court. Venture Express moved to dismiss the case based on the employment agreement, which the circuit court did. The Court of Civil Appeals reversed based on its reading of the Workers' Compensation Act and its own precedent. Venture Express then petitioned this court for a writ of certiorari, which we now deny.
I concur to deny the petition because this case is an imperfect vehicle to resolve the question that has been presented. I write separately, however, to highlight two important issues regarding the interplay between the Workers' Compensation Act and private-party contract rights that may be of interest to our Court in a future case.
The first issue is whether § 25-5-35, Ala. Code 1975, prohibits employers and employees from contracting for choice-of-law provisions like this one. The statute speaks to the ability of employers and employees to contract within the workers' compensation framework. See § 25-5-35(c). But the only potential agreement specifically contemplated by subsection (c) has to do with where employment is principally localized. And an agreement that employment is principally localized in another state does not, on its own, eliminate an employee's ability to seek workers' compensation recovery in Alabama when the injury occurs here. See § 25-5-35(g). So if an employer wants to avoid proceeding under the workers' compensation laws of Alabama, it needs to agree contractually with the employee to a choice-of-law provision -- and, of course, eventually have that provision upheld and enforced.
It appears that § 25-5-35 does not address whether employers and employees can agree to such a provision. Subsection (g) says that "benefits ... may be recovered" in the circumstances presented by Sellers's claim. But it's difficult to see how having the right to recover benefits necessarily prohibits a choice-of-law provision that mandates recovery under another jurisdiction's workers' compensation regime. At the very least, the language of the statute does not explicitly prohibit parties from agreeing to a choice-of-law provision -- which is a type of provision this Court has routinely enforced in other contexts. See, e.g., Stovall v. Universal Constr. Co., 893 So. 2d 1090, 1102 (Ala. 2004) ("Alabama law would have us first look to the contract to determine whether the parties have specified a particular sovereign's law to govern."); Polaris Sales, Inc. v. Heritage Imports, Inc., 879 So. 2d 1129, 1133 (Ala. 2003) ("Alabama law has long recognized the right of parties to an agreement to choose a particular state's laws to govern an agreement." (internal quotation marks omitted)). As the Pennsylvania Supreme Court noted in a case cited in the Court of Civil Appeals' opinion, the Model Act, upon which Alabama's Workers' Compensation Act is based, "does not cognize such a choice-of-law provision." McIlvaine Trucking, Inc. v. Workers' Comp. Appeal Bd., 570 Pa. 662, 672-73, 810 A.2d 1280, 1285 (2002). The question, then, is what to make of that silence. That's not clear to me -- and I would not be willing to "read in" an additional restriction that is not expressly provided or reasonably implied by the statute. See Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts § 8, at 93 (Thomson/West 2012) (explaining that, under the omitted-case canon, "a matter not covered [by a statute] is to be treated as not covered"). In a future case where this issue recurs and our Court agrees to entertain it, I would be open to arguments that are grounded in the text, structure, and history of the Workers' Compensation Act.
This is fundamentally different than the scenario that the Court of Civil Appeals says the Model Act -- upon which Alabama's Workers' Compensation Act is based -- sought to remedy. Before states, including Alabama, began adopting the Model Act, some employees working outside their home states were without a remedy for injuries because of "gaps" in state statutes. For example, in House v. State Industrial Accident Commission, 167 Or. 257, 117 P.2d 611 (1941), an employee of an Oregon-based company sent to work at a branch in California was unable to recover under either state's system because Oregon's statute required that his regular place of employment be in Oregon and California's statute applied only if his employment agreement was formed in California. To prevent employees from falling into this recovery black hole, the Model Act proposed an expanded scope that included extraterritorial coverage. Here, by contrast, there is no House-like gap. Even if the choice-of-law provision in Sellers's employment agreement was upheld, she would still be able to seek a workers' compensation remedy under Tennessee law. See § 50-6-115(b)(2)(A), Tenn. Code Ann.
Given the lack of treatment of choice-of-law provisions in the Workers' Compensation Act, it may be helpful in a future case to examine how such provisions are -- or are not -- addressed in other areas of the Alabama Code. See House v. Cullman Cnty., 593 So. 2d 69, 75 (Ala. 1992) (citing the proposition that "where a statute, with reference to one subject contains a given provision, the omission of such provision from a similar statute concerning a related subject is significant to show" a difference in meaning (internal quotation marks omitted)). At first glance, it appears that the Code's handling of choice-of-law provisions is inconsistent. In some instances, as in the Motor Vehicle Franchise Act, the Code specifically prohibits the practice of entering into choice-of-law provisions. See § 8-20-14, Ala. Code 1975. In other areas, such as the fund-transfers article of the commercial code, the Code expressly permits choice-of-law provisions. § 7-4A-507, Ala. Code 1975.
The second issue is this: If workers' compensation choice-of-law provisions are not prohibited by the Workers' Compensation Act, would they nevertheless be void under our common law of contracts -- particularly the void-for-public-policy doctrine? The Court of Civil Appeals notes toward the end of its opinion that there is precedent in that court holding that an employee may not validly contract away his or her avenues of recovery under the Workers' Compensation Act. See Kennedy v. Cochran, 475 So. 2d 872, 875-76 (Ala. Civ. App. 1985). I can see why the Court of Civil Appeals followed its own precedent in this instance.
But Kennedy v. Cochran is not binding on this Court -- and I question whether we would adopt it. Kennedy based its relevant holding on two previous decisions: one from this Court and another from the Supreme Court of Minnesota. The decision from this Court, Martin v. Republic Steel Co., 226 Ala. 209, 146 So. 276 (1933), is an older case in which the Court held that a general "hold harmless" provision between an employer and an employee did not shield the employer from the Workers' Compensation Act. That is distinguishable from the provision disputed here because the provision in this case is not a general hold-harmless clause -- it's a choice-of-law provision. The Minnesota decision, Wass v. Bracker Construction Co., 185 Minn. 70, 240 N.W. 464 (1931), is also an older decision, though it is more on point. There, the court held that "[a]n employee entitled to compensation cannot contract away that right. A contract ... [providing] that in case of injury [an employee] should not get [workers'] compensation ... would be void as against public policy." 185 Minn. at 73, 240 N.W. at 466. That is arguably distinguishable from this case because Sellers is not contracting away her right to compensation -- only her right to seek it under the workers' compensation laws of states other than Tennessee. In any event, Wass would not bind us.
To sum up, in a future case where the relevant question is cleanly presented and our Court accepts certiorari review, I would be interested in hearing argument about whether employees should be allowed, under the Workers' Compensation Act or, alternatively, as a matter of common law, to contract away potential recovery under Alabama law in favor of potential recovery under another state's law. I can see merit on both sides of this argument and would be interested to hear how parties and amici curiae believe it should be resolved.