APAC-Mississippi, Inc. v. Goodman

• Decision Date: 10 January 2002
• Docket Number: No. 2000-CA-00891-SCT.,2000-CA-00891-SCT.
• Citation: 803 So.2d 1177
• Parties: APAC-MISSISSIPPI, INC. v. James Lee GOODMAN.
• Court: Mississippi Supreme Court

803 So.2d 1177

APAC-MISSISSIPPI, INC. v. James Lee GOODMAN.

No. 2000-CA-00891-SCT.

Supreme Court of Mississippi.

January 10, 2002.

Robert L. Wells, Erin Setnikar Christ, Jackson, for Appellant.

Paul Kelly Loyacono, Everette Verhine, Vicksburg, for Appellee.

EN BANC.

WALLER, Justice, for the Court.

INTRODUCTION

¶ 1. B.A.S., the general contractor for the construction of the Junction Shopping Center in Jackson, Hinds County, Mississippi, entered into a subcontract with APAC-Mississippi, Inc., for the installation of the shopping center's asphalt parking lot. APAC decided to spread hydrate lime over the soil for stabilizing purposes prior to laying the asphalt, so it contracted with Falco Lime, Inc., to deliver and spread the lime as directed by APAC. APAC had the option to spread the lime itself, but its usual business practice was to, as in this case, require the lime supplier both to deliver and spread it.

¶ 2. Before sunrise, James Lee Goodman, a Falco employee, arrived at the work site with a truck load of lime. Goodman inspected the work site with an APAC employee who told Goodman where to spread the lime and how thickly to spread it. While returning to the truck, Goodman walked over part of the unfinished parking lot, including a muddy area which had previously been treated with lime by another Falco employee.¹ Goodman slipped and injured his knee. According to Goodman, the lime made the ground unreasonably slippery and this condition caused the accident.

¶ 3. Goodman received workers' compensation benefits based on his employment with Falco. He then filed a complaint in the Circuit Court of Warren County, Mississippi, claiming that APAC was negligent by causing an unreasonably dangerous concealed condition, by allowing the unreasonably dangerous concealed condition to continue to exist, and by failing to warn Goodman of the condition.²

¶ 4. The jury returned a verdict in the amount of $400,000 in favor of Goodman. Feeling aggrieved, APAC has appealed, raising claims that the trial court erred in entering partial summary judgment in favor of Goodman, in making evidentiary rulings and in failing to order a remittitur. Because we find that the entry of partial summary judgment was inappropriate, we reverse and remand for a new trial.

DISCUSSION

I. WHETHER THE TRIAL COURT ERRED IN DENYING APAC'S MOTION FOR SUMMARY JUDGMENT AND GRANTING A PARTIAL SUMMARY JUDGMENT TO GOODMAN, A NON MOVING PARTY.

¶ 5. APAC filed a motion for summary judgment claiming that, as Falco was a subcontractor of APAC, APAC was a statutory employer and was therefore immune from tort liability under Mississippi law. APAC further contended that Goodman's exclusive remedy was provided by the Mississippi Workers' Compensation Act. At the hearing on the motion for summary judgment, Goodman, for the first time, claimed that Falco was a materialman, not a subcontractor, and APAC therefore was not immune from tort liability as a statutory employer under the Act. Despite the fact that Goodman had not filed a motion for summary judgment and was only defending against APAC's motion, the trial court entered partial summary judgment for Goodman, finding that, as a matter of law, Falco was a materialman and not a subcontractor, and that the Act did not apply.

¶ 6. APAC requested the trial court to set aside the order granting partial summary judgment and allow the issue of whether Falco was a subcontractor or a materialman to go to the jury as a disputed issue of fact. The trial court refused to set aside its order and precluded APAC from offering evidence that it had contracted with Falco to provide labor (i.e., spreading the lime), thereby making Falco a sub-contractor.

¶ 7. We conduct a de novo review of orders granting summary judgment and consider all the evidentiary matters before it—admissions in pleadings, answers to interrogatories, depositions, affidavits, etc. Aetna Cas. & Sur. Co. v. Berry, 669 So.2d 56, 70 (Miss.1996). A motion for summary judgment may be granted only where there is no genuine issue of material fact; summary judgment is not a substitute for the trial of disputed facts. Brown v. Credit Ctr., Inc., 444 So.2d 358, 362 (Miss.1984). Issues of fact sufficient to require denial of a motion for summary judgment obviously are present where one party swears to one version of the matter in issue and another says the opposite. Berry, 669 So.2d at 70. ¶ 8.

In most cases where summary judgment is at issue, "[t]he evidence must be viewed in the light most favorable to the party against whom the motion has been made." Id. In those instances, "[a]ll that is required of a non-movant to survive a motion for summary judgment is to establish a genuine issue of material fact...." Simmons v. Thompson Mach. of Miss., Inc., 631 So.2d 798, 801 (Miss.1994).

A. Whether the trial court erred in granting partial summary judgment to Goodman.

¶ 9. The grant of summary judgment for the non-moving party clearly is proper if both sides agree that there are no material fact issues and join in the request that the case be decided, for the moving or the non-moving side, on the basis of a motion for judgment made by only one of them. 10A Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure § 2720, at 346 (1998). See also Galindo v. Precision Am. Corp., 754 F.2d 1212, 1216 (5th Cir.1985); Scottsdale Ins. Co. v. Deposit Guar. Nat'l Bank, 733 So.2d 863, 867 (Miss.Ct.App.1999).

¶ 10. In Scottsdale, the only Mississippi case dealing with the propriety of granting summary judgment to a non-moving party, after one of the parties filed a motion for summary judgment and both of the parties submitted a "Stipulation of Fact and Waiver of Jury Trial," the trial judge made a determination of the legal effect of the agreed-upon facts. The Mississippi Court Appeals affirmed, finding that the nonmoving party was entitled to judgment as a matter of law.

¶ 11. In the case sub judice, Goodman and APAC did not enter into a "Stipulation of Fact and Waiver of Jury Trial." It appears from the record that Goodman appeared at the hearing to defend against APAC's motion; however, the trial court not only denied APAC's motion, but entered partial summary judgment in favor of Goodman, even though the hotly contested issue of fact of whether Falco was a subcontractor or a materialman existed.

B. Did the trial court err in denying APAC's motion for summary judgment?

¶ 12. Both parties agree that APAC was a subcontractor of B.A.S. Construction, and that APAC and Falco entered into a contract where Falco agreed to perform certain work that APAC had previously contracted to do for B.A.S. Under the APAC-Falco contract, Falco promised to deliver lime to the job site and to blow and spread the lime onto the area designated by APAC.

¶ 13. The parties further agree that, while touring the job site, Goodman injured his knee after walking through a patch of ground on which lime had been spread and which was wet. After Goodman was injured, another APAC employee offered to blow the lime for Goodman. However, Goodman refused, and only after completing the job, was he taken by ambulance to the hospital. Goodman sought and Falco paid workers' compensation benefits for the injury he incurred while working on the APAC work site.

¶ 14. The trial court, during the hearing on APAC's motion for summary judgment, made the following findings of fact and conclusions of law, summarized as follows:

A. Upon each delivery of lime to the work site, Falco issued documents entitled either "Straight Bill of Lading" or "Shipping Order," with each document stating: "Falco Lime is a material supplier. Our drivers deliver/spread this product under the customer's direction and supervision." These "Bills of Lading" and the language contained in them indicated that Falco considered itself to be a materialman and not a subcontractor.

B. Once a Falco driver entered upon APAC's work site, APAC employees instructed him where to place the lime and to what degree of thickness the lime was to be applied. After depositing the lime onto APAC's site, the Falco truck exited the job site and all work thereafter relating to the lime was performed by APAC employees.

C. Falco Lime was a materialman and that APAC was not a statutory employer, and therefore not shielded from liability under Mississippi's Workers' Compensation Act. The most efficient way to spread the lime was by using a special tanker truck. Falco possessed such a truck, and APAC did not. All of the activities required in "installing" the lime, i.e., preparing the soil, mixing the soil and lime, adding water, compacting the soil and lime, and grading the area, were performed by APAC. Merely driving a tanker truck across a staked-out area and delivering lime at a set degree of thickness was not enough to convert Falco Lime from a materialman to a subcontractor. To adopt any other interpretation of the law to the facts would give too broad a reach to the definition of subcontractor such that it would subsume the meaning assigned to a materialman.

¶ 15. APAC argues that the undisputed facts showed that Falco was in fact a subcontractor of APAC, pointing out that we have previously defined a subcontractor as "one who enters into a contract, express or implied, for the performance of an act with a person who has already contracted for its performance, or who takes a portion of the contract from the principal or prime contractor." Vance v. Twin River Homes, Inc., 641 So.2d 1176, 1182-83 (Miss.1994) (citations omitted).

¶ 16. While we have previously held that no rule can be laid down to determine the difference between a subcontractor and a materialman, general principles have evolved to aid in differentiating between the two. "[A] materialman may be distinguished from a contractor or subcontractor by the fact that he agrees only to furnish materials and not to install them or do any work in connection therewith."...