On July 13, the Alabama Court of Civil Appeals released its opinion in Lawler & Cole CPAs LLC and Alabama Retail Association dba Alabama Retail Comp v. Donald Cole, which was on appeal for the Marion County Circuit Court.

Joshua Holden

In the underlying case, the employee’s estate filed a motion for summary judgment on its claim for death benefits based on the employee’s death as a result of a former client shooting her in her office. The employer also filed a motion for summary judgment, which was denied. The trial court found that the employee’s death occurred in, and arose out of. the employee’s work.

The parties agreed with the facts of the circumstances of the employee’s death in that she had served as the accountant for Jimmy Dale Cooper since at least the 1980s. At some point, Cooper was audited and ultimately refused to comply with the lawful request of the Alabama Department of Industrial Relations.

The employee and her employer subsequently ceased to handle Cooper’s business, at which time she told Cooper that she did not want any hard feelings between them because they were friends and had worked together for such a long time, but the employer could no longer handle his business.

In February of 2016, Cooper entered the premises of the employer and shot and killed the employee. The evidence established that Cooper had stated that he was upset and was going to shoot the employee because he blamed her for the tax problems in his past. Nothing in the evidence established that Cooper and the employee had any sort of personal disagreement.

Under the Alabama Workers’ Compensation Act, the unexpected willful assault upon an employee by another person constitutes an accident for the purpose of the act, and any injury resulting shall be compensable if the rational mind can trace the injury or death to a proximate cause set in motion by the employment, and not some other agency.

Furthermore, the supporting case law indicates that the employment can still be the proximate cause if the assault was not foreseeable as a natural and anticipated risk of the employment.

The employer was arguing that the length of time between the interaction between the employee and Cooper supported that there was something personal that resulted in the employee being killed, or that at the very least it was unrelated due to the gap in time.

However, the Alabama Court of Civil Appeals pointed out that the plain language of the statue, § 25-5-1(9), clearly and unambiguously provides that the intentional assault would not arise out of the employment if it was committed for reasons personal to the employee and not because of his/her status as an employee or because of his/her employment.

The Alabama Court of Civil Appeals stated that despite the fact that there was a significant lapse in time between the employment-related act and the employee being killed, the evidence was undisputed that Cooper intentionally assaulted and killed the employee not out of personal ill will, but solely because of the employee’s work performed on Cooper’s taxes.

Immediately before opening fire on the employee, Cooper stated his intent to kill the employee because she “f***** (his) taxes.” The court specifically rejected any contention that an assault would be considered purely personal because of the long passage of time.

Furthermore, while the record may have been vague as to what happened between their professional relationship and the time Cooper shot the employee, it was clear that Cooper was angry and blamed the employee for his tax problems and was acting as a result. 

Therefore, the Court of Civil Appeals upheld the trial court’s motion for summary judgment ruling that the death of the employee was caused by accident arising out of and occurring in the course of the employee’s employment and therefore, benefits were due to the employee’s estate.

Joshua G. Holden is a partner of Fish Nelson & Holden LLC, headquartered in Birmingham, Alabama. This entry is republished, with permission, from firm's Alabama Workers' Comp Blawg.