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Bullin v. Correctional Medical Services11/19/2004
2d at 1165. Judge Crawley, although voting to concur in the result, agreed with the main opinion that "the Workers' Compensation Act d not bar [the bank employee]'s tort claims of outrage and invasion of privacy." 735 So. 2d at 1166 (citing Garvin v. Shewbart, 442 So. 2d 80 (Ala. 1983)).
The holding of this court in Jones compels us to conclude that the employees' tort claim against CMS is not barred by the exclusivity provisions of the Act because the employees are undisputedly not seeking recovery for an "injury" within the scope of the Act. Although the purportedly tortious conduct of CMS that is alleged to have harmed the employees in this case may not be comparable to that alleged in Jones, or that alleged in Busby (which involved egregious sexual harassment), the claimed result of that conduct is the same: emotional distress that has not been produced or proximately caused by a physical injury to the body so as to be within the scope of ยง 25-5-1(9).
The summary judgment in favor of CMS is reversed, and the cause is remanded for further proceedings. However, our conclusion should not be construed as indicating that the employees are necessarily entitled to prevail on their tort claim. As in Jones, the judgment under review is based "solely on the exclusivity provisions of the Workers' Compensation Act," and whether liability may properly be affixed upon CMS as a matter of tort law "is not before this court and will not be addressed." 735 So. 2d at 1164; see also Liberty Nat'l Life Ins. Co. v. University of Alabama Health Servs. Found., P.C., 881 So. 2d 1013, 1020 (Ala. 2003) (indicating that a summary judgment may not properly be affirmed where the movant "has not asserted before the trial court a failure of the non-movant's evidence on an element of a claim or defense and therefore has not shifted the burden of producing substantial evidence in support of that element").
REVERSED AND REMANDED.
Yates, P.J., and Crawley, Thompson, and Murdock, JJ., concur.
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