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RAST CONST.9/20/1996
Ada Peters's son, Donnie Richardson, was killed while working on a Rast Construction, Inc., site in Jefferson County. As administratrix of her son's estate, Peters filed a wrongful death action against Rast, alleging that negligence, wantonness, or willfulness on Rast's part had caused Richardson's death. A jury returned a verdict for Peters, and the circuit court entered judgment on that verdict. Rast appeals.
Rast, a general contractor, was awarded a contract by the State of Alabama to repair a hillside and install a 30-inch metal drainage pipe at a site in Vestavia Hills. For this work at the Vestavia Hills site, Rast subcontracted with Ed Gingrich to weld pipe sections that were being installed by Rast. Gingrich informed Rast that he would require assistance in performing the job and was told by Rast that Rast would provide someone to assist him.
On the day of the accident, Gingrich was welding three sections of the pipe. Rast laborer employee Tyrone Nation was instructed by site supervisor Robert Culpepper and/or superintendent Daniel Rast, to assist Gingrich. After helping Gingrich for a while, Nation was relieved by Richardson, so that Nation could take a break. The duties performed by Richardson were handing Gingrich welding rods, helping clamp and line the pipes, and grounding his lead.
Culpepper and Daniel Rast testified that they never directly instructed Richardson to relieve Nation, but that it was common practice among employees to help one another. Within 30 minutes after Richardson had relieved Nation, a portion of the ground caved, causing a pipe to fall on Richardson. He was crushed to death.
After Richardson died, Peters's original attorney contacted Rast and requested that it have its workers' compensation insurance carrier contact him. The record does not reflect that Rast responded to the request. However, Rast and/or its workers' compensation carrier did pay $500 for a headstone, $4,900 in medical bills, and $4,760 in funeral expenses; it was reimbursed $1,000 by its workers' compensation carrier. Richardson's final paycheck was paid to Peters, and she received life insurance proceeds from a co-pay group plan provided for Rast employees.
Rast argues that the only remedy available to Peters was through a workers' compensation action pursuant to Ala. Code 1975, § 25-5-53, because, Rast argues, Richardson was an employee of Rast at the time of the accident. Rast argues that because it was Richardson's employer, it enjoys the benefit of the exclusivity provisions of § 25-5-53. Rast claims that its payment of the medical and funeral benefits, coupled with the letter from Peters's original attorney, further support its position that Peters pursued a workers' compensation claim on behalf of her son, thereby acknowledging Rast as his employer and, according to Rast, barring her common law actions.
Peters argues that the fact that Rast paid medical and funeral expenses does not prove a workers' compensation claim. As a basis for her argument, she says Rast never responded to the letter of her original attorney and also that she was not fully aware of the surrounding circumstances at the job site at the time Richardson was killed. Bobby Rast, a part owner of Rast Construction, told Peters at the funeral that he would take care of the funeral and medical bills. Peters says that, in her state of grief she had no reason to ascertain that Bobby Rast really meant that Rast's workers' compensation carrier would be paying those bills. The fact that these bills were paid directly to who they were owed (and not to Richardson's estate) is also part of Peters's argument that she would not have known that she was making a workers' compensati
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