2021 WL 720068

United States District Court, D. Colorado.
LORENZO PHILLIPS, by and through his Guardian Ad Litem, ANITA DEADWYLER, Plaintiff,
v.
CLARENCE MISER, and C.R. ENGLAND, Defendants.
Civil Action No. 19-cv-3332-WJM-SKC
|
02/24/2021

William J. Martinez, United States District Judge

ORDER DENYING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT
*1 In this negligence action, Plaintiff Lorenzo Phillips, by and through his guardian ad litem, Anita Deadwyler (“Plaintiff”) sues Defendants Clarence Miser and C.R. England (jointly, “Defendants”) after a motor vehicle accident that left Plaintiff severely injured on September 4, 2016.

This matter is before the Court on Defendants’ Motion for Summary Judgment (“Motion”), filed on August 27, 2020. (ECF No. 39.) For the reasons explained below, the Motion is denied.

I. STANDARD OF REVIEW
Summary judgment is warranted under Federal Rule of Civil Procedure 56 “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248–50 (1986). A fact is “material” if, under the relevant substantive law, it is essential to proper disposition of the claim. Wright v. Abbott Labs., Inc., 259 F.3d 1226, 1231–32 (10th Cir. 2001). An issue is “genuine” if the evidence is such that it might lead a reasonable trier of fact to return a verdict for the nonmoving party. Allen v. Muskogee, 119 F.3d 837, 839 (10th Cir. 1997).

In analyzing a motion for summary judgment, a court must view the evidence and all reasonable inferences therefrom in the light most favorable to the nonmoving party. Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 670 (10th Cir. 1998) (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)). In addition, the Court must resolve factual ambiguities against the moving party, thus favoring the right to a trial. See Houston v. Nat’l Gen. Ins. Co., 817 F.2d 83, 85 (10th Cir. 1987).

II. BACKGROUND

A. Factual Allegations1
On September 3, 2016, Rami Kanafani drove Plaintiff and Trevon Andre Barlow to a friend’s house in Fort Collins, where the individuals shared a full bottle of Captain Morgan’s rum with their friend. (ECF No. 39 at 3 ¶¶ 1, 3–4.) At around 10:00 p.m., Plaintiff, Kanafani, and Barlow went to a bar called The Rec Room, where they shared “three to four rounds of lemon drop shots, long island iced teas, and cranberry juice and vodka mixed drinks.” (Id. ¶¶ 5–6.)

In the early morning of September 4, 2016, Kanafani drove his Mazda 3 southbound on I-25 from Fort Collins to Aurora and Denver. (Id. ¶ 9.) Kanafani was intoxicated and driving at 111 miles per hour in an area with a speed limit of 55 miles per hour. (Id. ¶¶ 9–12.) Plaintiff was asleep in the backseat of Kanafani’s vehicle and Barlow sat in the front seat of the vehicle. (Id. ¶¶ 13–14.) Neither Plaintiff nor Barlow wore seatbelts. (Id. ¶ 15.) At the same time, Miser, in the course and scope of his employment, was driving a C.R. England semi-tractor trailer southbound on I-25 at 60 miles per hour. (Id. ¶ 16.)

*2 Miser and Kanafani dispute the circumstances that led to Kanafani’s vehicle colliding with the rear passenger side of Miser’s vehicle around Exit 221 and 104th Avenue. (Id. ¶ 27.) At 5:54 a.m. on September 4, 2016, Miser gave the following written statement:
Heading South on I-25, speed limit switch from 65 to 55[,] I slowed down to the limit after it change[d] f[rom] 2 lanes to 3 lanes. I got it to the middle lane because I had to take a[n] exit 4 miles up on the road, which is exit 217B to I-270E which is also on the left side. Around exit 221 I felt a jolt [from] the back. I looked back thinking I popped a tire, but notice[d] [some]thing falling from the sides so I pulled over and looked back and [saw] a car on the side of the road. Ran back to see 2 people [o]n the front side, I f[l]agged down a car and told her to [call] 911. [T]he pass[enger] was moving a little. I told him not to move, few min[utes] later I s[aw] the flashing [r]ed/[b]lue lights.
(ECF No. 61 at 4 ¶ 3.) In a subsequent declaration, Miser clarified that he “changed lanes to the middle lane where I-25 changes from two to three lanes,” and did not thereafter switch lanes.2 (ECF No. 39-10.) Miser has “since learned I-25 goes from two to three lanes close to milepost marker 244,” i.e., 23 miles before the collision site. (Id.)

In a sworn affidavit, Kanafani states:
I was in the 3rd lane of southbound I-25 and the C.R. England truck was in the 4th lane (the right-hand lane).
After the overpass for 112th/Community Center Drive, the speed limit changed from 65 mph to 55 mph and the C.R. England truck was in the right-hand lane.
As I approached the C.R. England truck, it made a sudden and quick lane change from the 4th lane into the lane I was in (the 3rd lane).
I was traveling a high rate of speed, and the sudden lane change cut me off, so I had to swerve to avoid the truck. I swerved to the right and hit the right rear corner of the C.R. England trailer.
If the C.R. England truck had not made the sudden and unsafe lane change into my lane, the accident would not have occurred.
(ECF No. 58-1 ¶¶ 9–14.)

Miser’s vehicle was completely in the middle lane at the time of the collision and no other vehicles were driving in the other traffic lanes. (Id. ¶¶ 29–30.) Unfortunately, the collision caused Plaintiff to suffer severe, life-long injuries. (Id. ¶ 33.)

Plaintiff sues Miser for negligence and negligence per se based on Colorado Revised Statutes §§ 42-4-1402 (careless driving) and 42-4-1007 (driving on roadways laned for traffic) and sues C.R. England under a theory of respondeat superior. (ECF No. 7 ¶¶ 36–57.)

Defendants filed the Motion on August 27, 2020. (ECF No. 39.) Plaintiff responded on November 3, 2020 (ECF No. 58), and Defendants replied on November 17, 2020 (ECF No. 61).

III. ANALYSIS

A. Evidentiary Objections
While the parties make numerous evidentiary objections, the Court must only address the objections to Kanafani’s affidavit at this time, as it is the only evidentiary objection that is relevant to the resolution of the Motion.

*3 At the summary judgment stage, evidence need not be submitted “in a form that would be admissible at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). Parties may, for example, submit affidavits in support of summary judgment, despite the fact that affidavits are often inadmissible at trial as hearsay, on the theory that the evidence may ultimately be presented at trial in an admissible form. Bryant v. Farmers Ins. Exch., 432 F.3d 1114, 1122 (10th Cir. 2005). Nonetheless, “the content or substance of the evidence must be admissible.” Thomas v. Int’l Bus. Machs., 48 F.3d 478, 485 (10th Cir. 1995). Thus, for example, at summary judgment a court should disregard inadmissible hearsay statements contained in affidavits, as those statements could not be presented at trial in any form. See Hardy v. S.F. Phosphates Ltd. Co., 185 F.3d 1076, 1082 n.5 (10th Cir. 1999).

The requirement that the substance of the evidence must be admissible is not only explicit in Rule 56, which provides that “[s]upporting and opposing affidavits shall …set forth such facts as would be admissible in evidence,” Fed. R. Civ. P. 56(e), but also implicit in a court’s role at the summary judgment stage. To determine whether genuine issues of material fact make a jury trial necessary, a court necessarily may consider only the evidence that would be available to the jury. See Truck Ins. Exch. v. MagneTek, Inc., 360 F.3d 1206, 1216 (10th Cir. 2004) (affirming summary judgment, in light of the available evidence, because “[j]ury verdicts may not be based on speculation or inadmissible evidence or be contrary to uncontested admissible evidence”). The Tenth Circuit reviews a district court’s evidentiary rulings at the summary judgment stage for abuse of discretion. See Argo v. Blue Cross & Blue Shield of Kan., Inc., 452 F.3d 1193, 1199 (10th Cir. 2006) (citing Jones v. Barnhart, 349 F.3d 1260, 1270 (10th Cir. 2003)).

Defendants argue that Kanafani’s affidavit is inadmissible hearsay and that Plaintiff cannot present Kanafani’s live testimony as evidence at trial because “Mr. Kanafani is in Saudi Arabia and unable to return to the U.S. to testify.” (ECF No. 61 at 5–6, 9.) Specifically, Defendants argue that Kanafani “cannot renew his DACA (Deferred Action for Childhood Arrivals) [status] in order to return to the United States.” (Id. at 9–10.) However, in the Proposed Pretrial Order, Plaintiff has identified Kanafani as a trial witness who “will testify in person.” (ECF No. 73 at 6.)

The Court assumes that Plaintiff’s counsel is aware of and is complying with his Rule 11 obligations in representing to the Court that Kanafani will testify in person at trial. Based solely on this representation, the Court cannot conclude that Kanafani’s affidavit is inadmissible hearsay.

Defendants also argue that “[a]ny reliance on Mr. Kanafani’s [a]ffidavit…would be substantially prejudicial to Defendants given [that]…Defendants have had no opportunity to cross examine him.”3 (ECF No. 61 at 11.)

According to the scheduling order, Rule 26(a)(1) disclosures were due on January 10, 2020 and discovery closed in September 2020. (ECF No. 20 at 4, 8.) On September 8, 2020, Plaintiff’s counsel informed Defendant’s counsel that “[w]e know where Mr. Kanafani is at this time and are working to get an affidavit from him” and that they were “working [through] a third party to communicate with him.” (ECF No. 61-5.) Nonetheless, despite Defendants’ requests that Plaintiff disclose Kanafani’s contact information and/or the identity of the third-party through whom Plaintiff’s counsel was communicating, Plaintiff’s counsel waited until November 3, 2020—the same day as he submitted his response to the Motion—to serve a supplemental Rule 26(a)(1) disclosure containing Kanafani’s e-mail address.4 (ECF No. 61-4).

*4 The Court agrees that there is an inherent unfairness resulting from the late disclosure of Kanafani’s contact information and the fact that Defendants have not been able to depose Kanafani. However, Defendants did not file a motion to strike Kanafani’s affidavit as a sanction for Plaintiff’s untimely Rule 26(a)(1) disclosures. The Court is likewise unaware of any authority allowing it to decline to consider a witness’s affidavit on the basis that the witness has refused to speak with counsel, particularly where the witness resides beyond the subpoena power of the United States.

The Court will therefore consider Kanafani’s affidavit in connection with the Motion. However, Plaintiff’s counsel is on notice that the Court has a very dim view of, and will not in the future tolerate, this kind of bush league gamesmanship.

B. Negligence Claim
To sustain a claim for negligence, a plaintiff must prove the existence of a legal duty owed by a defendant to a plaintiff, a breach of that duty, injury to the plaintiff, and a sufficient causal relationship between the defendant’s breach and the plaintiff’s injury. See Connes v. Molalla Transp. Sys., Inc., 831 P.2d 1316, 1320 (Colo. 1992) (en banc). Drivers have a duty to drive with reasonable care under the circumstances. Kendrick v. Pippin, 252 P.3d 1052, 1062 (Colo. 2011), abrogated on other grounds by Bedor v. Johnson, 292 P.3d 924 (Colo. 2013).

Plaintiff contends that Miser acted negligently and breached his duty to drive with reasonable care when he changed lanes without properly determining whether he could do so safely. (See ECF No. 7 ¶¶ 36–44.)

Defendants argue that they are entitled to summary judgment on Plaintiff’s negligence claim because “there is no evidence to support [an argument that Miser] breached any duty owed to Plaintiff or that any alleged breach by Mr. Miser was the proximate cause of the accident.” (ECF No. 39 at 8.)

1. Breach of Duty
Defendants argue that Plaintiff cannot prove that Miser breached any duty owed to Plaintiff because there is no evidence that he made an unsafe lane change. (Id. at 9.) Specifically, they argue that “[a]t the time Mr. Kanafani rear ended Mr. Miser’s trailer, Mr. Miser had been traveling in the middle lane for 23 miles.” (Id.) They also cite an expert report compiled by William M. Bortles, a principal accident reconstructionist, to argue that Miser did not breach his duty to drive with reasonable care even if he had made a lane change just prior to the collision:
A peer-reviewed study has been published that examined the timing associated with tractor-trailer combinations performing lane changes. This study concluded that, on average, tractor-trailers complete right-to-left lane changes in 8.03 seconds, with a standard deviation of 1.66 seconds. Including 0.5 seconds for a mirror glance/limb movement, it is likely that a hypothetical right-to-left lane change in a tractor-trailer combination would take between 6.87 to 10.19 seconds. The closing speed between Mr. Kanafani’s Mazda (~111 mph) and Mr. Miser’s tractor-trailer (~60 mph), was approximately 51 mph, or approximately 75 feet per second. If we were to suppose that Mr. Miser had performed a lane change just prior to the crash, Mr. Kanafani would have been approximately 640 ± 124 feet behind the tractor-trailer. It would have been reasonable for Mr. Miser to perform a hypothetical lane change given a gap of two football fields. It is only due to the excessive closing speed of Mr. Kanafani that this hypothetical situation could result in conflict.
(ECF No. 39-4 at 25.)

Without Kanafani’s affidavit, the Court quite easily would have granted the instant Motion on the basis that there is no genuine issue of material fact supporting Plaintiff’s claim that Miser breached his duty to drive with reasonable care. However, Kanafani has signed a sworn statement representing that Miser made a “sudden and quick lane change from the 4th lane into the [3rd lane],” which caused Kanafani to “swerve to avoid the truck.” (ECF No. 58-1 at 2 ¶¶ 11–12.) As a key witness to the events underlying this litigation, Kanafani’s statement creates a material factual dispute regarding whether Miser breached his duty to drive with reasonable care.5

2. Proximate Cause
*5 “[A] finding of negligence does not create liability on the part of a defendant unless that negligence is a proximate cause of the plaintiff’s injury.” City of Aurora v. Loveless, 639 P.2d 1061, 1063 (Colo. 1981) (en banc). “Proximate cause” is “a cause which in natural and probable sequence produced the claimed injury” and “without which the claimed injury would not have been sustained.” People v. Stewart, 55 P.3d 107, 116 (Colo. 2002) (en banc). However, “[u]nlawful conduct that is broken by an independent intervening cause cannot be the proximate cause of injury to another.” Id. at 121; see also Smith v. State Comp. Ins. Fund, 749 P.2d 462, 464 (Colo. App. 1987) (recognizing that “if an event other than the defendants’ negligence appears predominant, the defendants’ negligence cannot be considered a substantial factor”). The issue of causation is ordinarily a question for the jury, but if the facts are undisputed and reasonable minds could draw but one inference from them, causation is a question of law for the court. See Moon v. Platte Valley Bank, 634 P.2d 1036, 1038 (Colo. App. 1981).

Defendants argue that there is “[n]o genuine issue of material fact…to support that any action of Defendant Mr. Miser was the proximate cause of the accident and [Plaintiff’s] alleged injuries.” (ECF No. 39 at 10.) In particular, Defendants contend that Miser’s lane change 23 miles prior to the accident was not a proximate cause of the accident. (Id. at 12.) They likewise argue that even if Miser changed lanes just prior to the accident, Miser should not have reasonably foreseen that Kanafani would have been traveling at 111 miles per hour while under the influence. (Id. at 12–13.) According to Defendants, Kanafani’s speed and intoxication “constitute an intervening cause breaking the natural or continued sequence necessary to establish proximate cause.” (Id. at 13.)

Kanafani’s affidavit creates a material dispute of fact that precludes a determination on summary judgment that Miser was not a proximate cause of Plaintiff’s injuries. It is possible—and perhaps even probable—that a reasonable jury will determine that Miser was not a proximate cause of Plaintiff’s injuries on the basis that Kanafani’s speed and intoxication are an intervening cause of the accident. However, to the extent a jury believes Kanafani’s statement that Miser made a “sudden and quick lane change” that forced Kanafani to swerve out of the way (ECF No. 58-1), a jury could determine that Miser was a proximate cause of Plaintiff’s injuries.

C. Negligence Per Se Claim
Plaintiff has asserted a negligence per se claim against Miser, alleging that Miser violated two statutes: (1) Careless Driving, Colo. Rev. Stat. § 42-4-1402, and (2) Driving on Roadways for Traffic, Colo. Rev. Stat. § 42-4-1007.6 (ECF No. 7 ¶¶ 45–51.)

Defendants argue that Plaintiff has failed to state a prima facie negligence per se claim for the same reasons they discussed in connection with Plaintiff’s common law negligence claim. (ECF No. 39 at 15–18.) Accordingly, the Court must deny summary judgment as to Plaintiff’s negligence per se claim for the same reasons stated in Part III.B.7

D. Respondeat Superior / Agency Claim
*6 Plaintiff has asserted that Defendant C.R. England is vicariously liable for Miser’s negligence based on the doctrines of respondeat superior and/or agency. (ECF No. 7 ¶¶ 52–57.)

Defendants recognize that Plaintiff’s claim of respondeat superior / agency are “dependent on the alleged employee’s tortious acts.” (ECF No. 39 at 18.) Because the Court has denied summary judgment as to Plaintiff’s negligence and negligence per se claims against Miser, the Court must also deny summary judgment as to Plaintiff’s respondeat superior / agency claim against C.R. England.

IV. CONCLUSION
For the reasons set forth above, the Court ORDERS that Defendants’ Motion for Summary Judgement (ECF No. 39) is DENIED.

Dated this 24th day of February, 2021.
BY THE COURT:

William J. Martinez

United States District Judge
All Citations
Slip Copy, 2021 WL 720068

Footnotes

1
The following factual summary is based on the parties’ briefs on the Motion and documents submitted in support thereof. These facts are undisputed unless attributed to a party or source. All citations to docketed materials are to the page number in the CM/ECF header, which sometimes differs from a document’s internal pagination.

2
This version of events is consistent with Miser’s statement to the Northglenn Police Department. (See ECF No. 58-3 at 4 (“Clarence had been traveling in the ‘middle lane’ of traffic, continually, and he had not made a lane change ‘for at least ten minutes before the accident.’ ”).)

3
The record reflects that Defendants’ counsel noticed Kanafani for a deposition on June 24, 2020. (ECF No. 61-6.) In the Proposed Final Pretrial Order, Defendants represent that they “have made every effort to locate Mr. Kanafani in order to take his deposition but have been unable to do so because of his current immigration status.” (ECF No. 73 at 14–15.)

4
The Court notes that Kanafani’s affidavit was signed on October 19, 2020. (ECF No. 58-1 at 2.) This suggests that Plaintiff’s counsel had contact with Kanafani more than two weeks before Plaintiff’s counsel served his supplemental Rule 26(a)(1) disclosure.

5
The Court notes that Kanafani, who was under the influence of alcohol at the time of the accident and made multiple false statements when questioned by the police, may not be an entirely credible witness. (See, e.g., ECF No. 39-2 at 3, 6 (after the accident, Kanafani informed Officer Carey that “I wasn’t driving” and informed Officer Schranz that he had only had a single drink on the evening of September 3, 2016).) Nonetheless, “[o]n summary judgment, a district court may not weigh the credibility of the witnesses.” Fogarty v. Gallegos, 523 F.3d 1147, 1165 (10th Cir. 2008); Eagle v. La. & S. Life Ins. Co., 464 F.2d 607, 608 (10th Cir. 1972) (“Summary judgment is not proper when an issue turns on credibility.”).

6
Colorado Revised Statute § 42-4-1402(1) provides that “A person who drives a motor vehicle, bicycle, electrical assisted bicycle, electric scooter, or low-power scooter in a careless and imprudent manner, without due regard for the width, grade, curves, corners, traffic, and use of the streets and highways and all other attendant circumstances, is guilty of careless driving.”
Colorado Revised Statute § 42-4-1007(1) provides that “Whenever any roadway has been divided into two or more clearly marked lanes for traffic…(a) A vehicle shall be driven as nearly as practicable entirely within a single lane and shall not be moved from such lane until the driver has first ascertained that such movement can be made with safety.”

7
Defendants also argue that to the extent the negligence per se claim is based on the careless driving statute, it is duplicative of Plaintiff’s common law negligence claim and should be dismissed. (ECF No. 39 at 16.) The case Defendants cite in support of this proposition, however, discusses only that a court generally does not need to instruct a jury about the statutory standard of care alongside a common law negligence instruction. See Silva v. Wilcox, 223 P.3d 127, 136 (Colo. App. 2009). It does not instruct a court to dismiss a negligence per se claim on summary judgment on the basis that it is duplicative of a common law negligence claim. At any rate, the Court need not resolve this dispute at this stage because Plaintiff also bases his negligence per se claim on the driving on roadways laned for traffic statute.

2021 WL 520902

NOT YET RELEASED FOR PUBLICATION.
Court of Civil Appeals of Alabama.
Gina Barfoot SELLERS
v.
VENTURE EXPRESS, INC.
2190165
|
February 12, 2021
Appeal from Cullman Circuit Court (CV-17-900316)
Opinion

HANSON, Judge.

*1 Gina Barfoot Sellers appeals from a judgment dismissing her claim in the Cullman Circuit Court seeking workers’ compensation benefits from her employer, Venture Express, Inc. (“Venture Express”). We reverse and remand.

On September 2, 2017, Sellers filed a complaint naming as defendants Venture Express, Tara Green, Steven Bloomfield, Jr., and On Time Logistics, LLC. Sellers, an Alabama resident, alleged that, on September 3, 2015, she had been involved in an automobile collision in Alabama while operating a tractor-trailer in the line and scope of her employment with Venture Express. Sellers alleged a claim under the Alabama Workers’ Compensation Act (“the Act”), Ala. Code 1975, § 25-5-1 et seq., against Venture Express and asserted various tort claims against the remaining defendants. On December 15, 2017, Venture Express moved to dismiss the claim against it, arguing that the only proper forum for Sellers’s workers’ compensation claim would be a Tennessee court. In support of its motion, Venture Express attached a copy of an agreement signed by Sellers indicating that her employment would be deemed “principally localized in Tennessee” and purporting to provide that any claims for workers’ compensation benefits asserted by Sellers against Venture Express would be governed by Tennessee law (“the agreement”). The agreement provided, in pertinent part, as follows:
“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 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 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.”
(Capitalization in original.)

On June 29, 2018, the trial court entered a judgment dismissing Sellers’s workers’ compensation claim against Venture Express on the ground that the agreement provided for the courts of Tennessee to serve as the exclusive forum for Sellers’s claim for workers’ compensation benefits. Sellers ultimately stipulated to the dismissal of the claims against the remaining defendants, and all remaining claims were dismissed on October 8, 2019. This appeal, which relates only to the trial court’s dismissal of Sellers’s claim for workers’ compensation benefits, followed.1

*2 The salient question on appeal is whether the agreement mandated the trial court’s dismissal of Sellers’s workers’ compensation claim against Venture Express because it was asserted in an Alabama court rather than a Tennessee court. Stated another way, we must consider whether the agreement required Sellers to seek workers’ compensation benefits only in a Tennessee court and only under Tennessee law despite her having been injured in Alabama. The Act mandates that, because this appeal concerns a question of law, this court must apply no presumption of correctness to the trial court’s ruling. Ala. Code 1975, § 25-5-81(e)(1).

In support of its argument that Tennessee was the exclusive forum for Sellers’s workers’ compensation claim, Venture Express cites subsection (c) of § 25-5-35, Ala. Code 1975. That subsection provides:
“(c) An employee whose duties require him2 to travel regularly in the service of his employer in this and one or more other states may, by written agreement with his employer, provide that his employment is principally localized in this or another such state; and, unless such other state refuses jurisdiction, such agreement shall be given effect under this section.”

To understand the proper scope of § 25-5-35(c), however, it is necessary to consider that subsection within the context of § 25-5-35 as a whole and to consider the context under which that section was enacted. Section 25-5-35 did not appear in Alabama’s workers’ compensation scheme as originally adopted; it was added by our legislature in November 1975. Ala. Acts 1975 (4th Special Session), Act No. 86 (p. 2729), § 1. Section 25-5-35 was added to address the “extraterritorial coverage” of Alabama’s workers’ compensation laws and was an incorporation, in substantial part, of model legislation (“the model act”) drafted by the Council of State Governments’ Advisory Committee on Workmen’s Compensation (“the Council”). The model act was, for its part, drafted to address the problem created by a mishmash of various state conflict-of-laws statutes and jurisprudence, which had too often resulted in situations in which a worker injured while laboring outside the worker’s home state was left without a remedy. The classic example of the problem sought to be remedied by the model act is typified by the facts of House v. State Industrial Accident Commission, 167 Ore. 257, 117 P.2d 611 (1941), in which an employee had made a contract for employment in Oregon and was then sent by his Oregon-based employer to operate a branch office in California but was subsequently killed during a brief trip back to Oregon to attend a branch managers’ meeting. Oregon’s workers’ compensation law was held in House not to apply to the employee’s death because that state’s law required an employee’s regular place of employment to have been located in Oregon, whereas California’s workers’ compensation law did not apply to the employee in that case because California law required at that time that an employment contract have been formed in California. Thus, the employee’s widow could not recover workers’ compensation death benefits from either state.

Efforts in the 1960s and 1970s to reform state workers’ compensation laws took note of the conflict-of-laws problem illustrated by House. One reform proponent, Professor Arthur Larson, urged a pragmatic solution. In a paper submitted to the National Commission on State Workmen’s Compensation Laws (“the Commission”),3 Larson proposed:
*3 “To meet the objective of avoiding lacunae in coverage, there are two relatively forthright solutions, either one of which would ordinarily insure some State would provide coverage, and the combination of which would be a completely reliable guarantee of this result.
“The first measure would simply be to have every State provide that it will always apply its compensation act to any injury occurring within its borders. …
“….
“The second measure would be to have each State, in its extra-territoriality clause, make its coverage of out-of-State injuries apply to each of the major items of legitimate State interest in disjunctive rather than conjunctive terms. For example, the statute could provide that it applies to an out-of-State injury if the place of contract was in the State, or the employment was localized in the State, or the employee’s residence was in the State, or the employer’s principal place of business was in the State. …
“By this combination, there will always be one State clearly covering an injury, and almost always two when any out-of-State feature is present.”
Arthur Larson, “Conflict of Laws in Workmen’s Compensation,” in Supplemental Studies for the National Commission on State Workmen’s Compensation Laws, 132 (Peter S. Barth and Monroe Berkowitz eds., 1973). The Commission’s report, issued in July 1972, included the recommendation “that an employee or his survivor be given the choice of filing a workmen’s compensation claim in the State where the injury or death occurred, or where the employment was principally localized, or where the employee was hired.” Report of Nat’l Comm’n on State Workmen’s Compensation Laws, R2.11 at 48 (1972). The Commission recommended that compliance by the states with its recommendations should be evaluated by July 1, 1975, and urged Congress to take action if the states had not, on their own initiative, addressed the concerns raised in its report.

In response to the Commission’s report and findings, the Council published the model act in 1973 for immediate consideration by the states, with the assurance that a state enacting the model act would meet in full all the recommendations of the Commission. Section 7 of the model act addressed “extraterritorial coverage” and incorporated much of the second alternate proposal suggested by Professor Larson;4 the model act provided for the application of an adopting state’s law to injuries occurring outside that state so long as one of four jurisdictional prerequisites was satisfied. Subsection (d) of § 25-5-35, Ala. Code 1975, constitutes a near-verbatim adoption by our legislature of § 7(a) of the model act. It provides:
“(d) If an employee, while working outside of this state, suffers an injury on account of which he or, in the event of his death, his dependents, would have been entitled to the benefits provided by this article [i.e., Article 2] and Article 3 of this chapter had [i.e., the Act] such injury occurred within this state, such employee or, in the event of his death resulting from such injury, his dependents, shall be entitled to the benefits provided by this article and Article 3 of this chapter, provided that at the time of such injury:
*4 “(1) His employment was principally localized in this state;
“(2) He was working under a contract of hire made in this state in employment not principally localized in any state;
“(3) He was working under a contract of hire made in this state in employment principally localized in another state whose workers’ compensation law was not applicable to his employer; or
“(4) He was working under a contract of hire made in this state for employment outside the United States.”
Thus, as the foregoing drafting history indicates, § 25-5-35(d) sets forth parameters under which the substantive provisions of the Act may properly be applied to work-related injuries occurring outside Alabama.

Even as our legislature in 1975 enacted subsection (d) of § 25-5-35, which incorporated the extraterritoriality approach suggested by the Commission, our legislature simultaneously adopted subsection (g) of that statute, a provision not included in the model act emphasizing that work-related injuries occurring inside Alabama will generally be covered under the Act even though a claimant’s employment may be principally localized in another state. Subsection (g) provides:
“(g) If, as a result of an employment principally localized in another state, an employee of an employer who would have been subject to this article or Article 3 of this chapter, had the contract of employment been entered into in this state for performance in this state, suffers injury or death as a result of an accident occurring in this state, compensation and medical, surgical, and hospital benefits on account of such injury or death may be recovered under this article or Article 3 of this chapter.”
Thus, our legislature elected to provide, in a manner consistent with the recommendations of the Commission, that, in addition to coverage of certain injuries occurring outside Alabama in situations when this state may be said to have an interest, coverage will extend under the Act to work-related injuries occurring in this state even when the injured employee’s employment had not been principally localized in Alabama. See Morgan v. CLM Indus., 628 So. 2d 675, 677 (Ala. Civ. App. 1993) (holding that Alabama court had, under subsection (g) of § 25-5-35, subject-matter jurisdiction over workers’ compensation claim filed by truck driver whose employment was principally localized in Texas because his injuries were sustained in Alabama).

Because subsection (g) provides that an Alabama court may entertain an action to recover workers’ compensation benefits under the Act with respect to an injury occurring within this state regardless of the localization of the employment of the injured employee, we next proceed to consider to what extent, if any, an employee and an employer may enter into a preinjury choice-of-law or forum-selection agreement regarding a workers’ compensation claim. As set forth above, § 25-5-35(c) allows an “employee whose duties require [the employee] to travel regularly in the service of his employer”5 to agree in writing that his or her employment is “principally localized” in a particular state. In Heater v. Tri-State Motor Transit Co., 644 So. 2d 25, 27 (Ala. Civ. App. 1994), this court stated that the purpose of § 25-5-35(c) was “to allow parties to confer jurisdiction of the workmen’s compensation laws of a particular state in circumstances where … an employee regularly travels in more than one state.” Thus, for example, in Heater, this court held that Alabama workers’ compensation law did not apply because the employee in that case, a truck driver who had suffered an injury in Indiana, had agreed that any workers’ compensation claims against his employer, a Missouri-based company, would be governed by Missouri law.

*5 Nevertheless, and notwithstanding the apparent breadth of this court’s statement in Heater regarding the scope of subsection (c), that subsection, which was a verbatim adoption of § 7(d)(5) of the model act, does not, and was not intended to, authorize choice-of-law or forum-selection agreements to defeat subject-matter jurisdiction otherwise conferred in the Act; nor may an agreement within the scope of § 25-5-35(c) divest the courts of Alabama of jurisdiction under the Act over work-related injuries occurring within Alabama. This is made plain for two reasons. First, the express language of § 25-5-35(g) specifically authorizes an employee whose employment is “principally localized in another state” to seek compensation under the Act for injuries occurring in Alabama. Second, under subsection (d), the determination of where a claimant’s employment is “principally localized” speaks to whether the Act may properly apply to injuries that occur outside Alabama, not within Alabama. As the commentary to the model act explains:
“[T]he agreement [under the model act equivalent to § 25-5-35(d)] only acts upon the issue whether the employment is ‘principally localized’ in a particular state. It therefore would act only upon the first two of the four tests of out-of-state coverage[, i.e., the model act equivalent to § 25-535(d)(1) & (d)(2) ].”
Council of State Governments, Workmen’s Compensation and Rehabilitation Law (With Section by Section Commentary), 100 (1973) (emphasis added). In other words, an agreement between an employer and an employee is determinative only of whether employment is indeed principally localized in a state (§ 25-5-35(d)(1)) or whether a claimant is “working under a contract of hire made in this state in employment not principally localized in any state” (§ 25-5-35(d)(2)). Thus, in this case, the agreement (assuming its recognition under Tennessee law) arguably gave Sellers the right to seek workers’ compensation benefits under Tennessee law for injuries sustained in Alabama.6 The agreement did not, however, deprive Sellers of her ability, as set forth in § 25-5-35(g), to seek workers’ compensation benefits under the Act for an injury occurring in Alabama.7

At least one jurisdiction that has adopted the model act has also addressed the precise question now presented to this court. In McIlvaine Trucking, Inc. v. Workers’ Compensation Appeal Board, 570 Pa. 662, 810 A.2d 1280 (2002), a driver employed by a trucking company had signed an agreement providing that the driver would be bound by the workers’ compensation laws of West Virginia should he suffer a work-related injury. The driver later suffered an injury while working in Pennsylvania, and he brought a claim for benefits under the Pennsylvania workers’ compensation act. The trucking company moved to dismiss the action, arguing that the claimant was bound by the laws of West Virginia; the trucking company, like Venture Express in this case, relied upon the applicable state law adopting § 7(d)(5) of the model act.8 The trucking company’s motion was denied, and the trucking company appealed. The Pennsylvania Supreme Court noted that Pennsylvania’s workers’ compensation act expressly conferred upon a particular Pennsylvania tribunal jurisdiction to hear claims arising from in-state work-related injuries and concluded that Pennsylvania’s version of § 7(d)(5) did not authorize employers and employees to deprive that Pennsylvania tribunal of subject-matter jurisdiction as to claims arising from in-state work-related injuries. The court in McIlvaine explained:
*6 “[Pennsylvania’s version of § 7(d)(5) of the model act] by its terms does not cognize such a choice-of-law provision; rather, as noted, the statute merely permits contractual designation of principal localization, which is employed solely in the context of the Act’s extraterritorial provisions.”
McIlvaine, 570 Pa. at 671-72, 810 A.2d at 1285. Accordingly, the McIlvaine court concluded that the parties’ choice-of-law agreement was ineffective to divest the appropriate Pennsylvania tribunal of subject-matter jurisdiction. See also L.R. Willson & Sons, Inc. v. PMA Grp., 867 F. Supp. 335, 338-39 (D. Md. 1994) (noting previous Pennsylvania opinions and indicating that an agreement between an employer and an employee cannot “diminish the applicability of Pennsylvania statutory law when the work and injury take place in Pennsylvania itself”).

Finally, we note that, as a general rule, an employee may not validly contract away the employee’s right to seek workers’ compensation benefits under the Act for a covered accident. See Kennedy v. Cochran, 475 So. 2d 872, 875-76 (Ala. Civ. App. 1985). As Professor Larson explains:
“Express agreement between employer and employee that the statute of a named state shall apply is ineffective either to enlarge the applicability of that state’s statute or to diminish the applicability of the statutes of other states. … [T]he rule in workers’ compensation is dictated by the overriding consideration that compensation is not a private matter to be arranged between two parties; the public has a profound interest in the matter which cannot be altered by any individual agreements. This is most obvious when such an agreement purports to destroy jurisdiction where it otherwise exists ….”
9 Arthur Larson & Lex K. Larson, Larson’s Workers’ Compensation Law, § 143.07[1] (2018). In this case, because we conclude that § 25-5-35(c) did not authorize the parties to agree to limit the jurisdiction of the Act, we must also conclude that that portion of the agreement purporting to restrict Sellers’s ability to seek workers’ compensation benefits under the Act is void as against public policy. Thus, the trial court erred in enforcing that portion of the agreement purporting to establish Tennessee as the exclusive forum for resolution of Sellers’s claim for workers’ compensation benefits.

Accordingly, we conclude that, notwithstanding the parties’ agreement that Sellers’s employment was to be principally localized in Tennessee, § 25-5-35(g) gave Sellers the right to seek compensation benefits under the Act for injuries sustained in Alabama, and such jurisdiction could not be divested by agreement of the parties. The judgment of the trial court dismissing Sellers’s workers’ compensation claim against Venture Express is, therefore, reversed, and the cause is remanded for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

Thompson, P.J., and Moore, Edwards, and Fridy, JJ., concur.
All Citations
— So.3d —-, 2021 WL 520902

Footnotes

1
The trial court purported to dismiss the claim “without prejudice.” Typically, the dismissal of an action without prejudice “lacks sufficient finality to support an appeal.” Edwards v. Hanger, 197 So. 3d 993, 995 (Ala. Civ. App. 2015). Nevertheless, “ ‘when the applicable statue of limitations would bar a subsequent action, the dismissal becomes, in effect, a dismissal with prejudice.’ “ Edwards, 197 So. 3d at 995 (quoting Guthrie v. Alabama Dep’t of Labor, 160 So. 3d 815, 816-17 n.2 (Ala. Civ. App. 2014)). At the time Sellers’s claim against Venture Express was dismissed, any subsequent workers’ compensation action, whether filed under Alabama or Tennessee law, would have been barred by the corresponding applicable statute of limitations. Accordingly, based upon Edwards and Guthrie, we consider the trial court’s dismissal of Sellers’s claim to be a final judgment sufficient to support this appeal.

2
Pursuant to Ala. Code 1975, § 1-1-2, words used in the Code of Alabama 1975 indicating the masculine gender also “include the feminine and neuter.”

3
The Commission was established by Congress pursuant to 29 U.S.C. § 656, as a part of the Occupational Safety and Health Act of 1970, 29 U.S.C. § 651 et seq., and was instructed to “undertake a comprehensive study and evaluation of State workmen’s compensation laws in order to determine if such laws provide an adequate, prompt, and equitable system of compensation.” Pub. L. No. 91-596, § 27(d)(1), 84 Stat. 1590 (1970).

4
Indeed, Professor Larson was the chairman of the Council’s Advisory Committee on Workmen’s Compensation that had prepared the initial drafts of the model act and is recognized by the Council as having authored the advisory committee’s comments published with the model act. The Council of State Governments, Workmen’s Compensation & Rehabilitation Law (Revised), ix (1974) (noting Larson’s authorship of the commentary to the model act).

5
We note that no evidence was submitted indicating the amount of time Sellers was required to travel out of state in the course of her employment with Venture Express. For the purpose of this discussion, however, we assume that the extent of Sellers’s out-of-state travel was sufficient to support an agreement pursuant to § 25-5-35(c).

6
It also potentially limited her ability to seek such benefits in jurisdictions in which her employment might otherwise have been deemed to have been principally localized or, if she had no principal location of employment, where her contract of hire had been made.

7
That Sellers might have the ability to seek compensation benefits under two state laws is expressly contemplated, and indeed intended, by the Act. See § 25-5-35(e), Ala. Code 1975 (adopted from § 7(b) of the model act and providing that recovery of benefits under the workers’ compensation laws of another state shall not bar recovery under the Act).

8
The applicable Pennsylvania statute, 77 Pa. Cons. Stat., § 411.2(d)(5), is nearly identical to § 25-5-35(c).