Christian v. McDonald

• Decision Date: 17 February 2005
• Docket Number: No. 2003-IA-01848-SCT.,2003-IA-01848-SCT.
• Citation: 907 So.2d 286
• Parties: Jewel CHRISTIAN d/b/a ABC, Jewel Christian and Charles E. Magee v. Timothy McDONALD and John E. Currie.
• Court: Mississippi Supreme Court

907 So.2d 286

Jewel CHRISTIAN d/b/a ABC, Jewel Christian and Charles E. Magee v. Timothy McDONALD and John E. Currie.

No. 2003-IA-01848-SCT.

Supreme Court of Mississippi.

February 17, 2005.

Shelly G. Burns, Jackson, attorney for appellants.

Gary R. King, Eugene C. Tullos, Raleigh, attorneys for appellees.

EN BANC.

DICKINSON, Justice, for the Court.

¶ 1. In this damage action for personal injuries sustained in a multiple vehicle accident, we granted permission to bring this interlocutory appeal to review the circuit court's order denying a transfer of venue. Because the exclusivity provision of the Workers' Compensation Law bars plaintiff's claim against the venue-fixing defendant who was plaintiff's fellow employee, we conclude that the circuit court abused its discretion in denying the venue transfer. Accordingly, we reverse and remand.

I.

¶ 2. On May 3, 2001, Timothy McDonald and John Currie, both employees of Crocodile Currie, Inc. ("CCI"), were transporting equipment for CCI in separate vehicles owned by CCI. They were traveling in a westerly direction on U.S. Highway 98 in Mobile County, Alabama, with McDonald in the lead. Traveling behind Currie in a vehicle owned by his employer, Jewel Christian, Charles E. Magee crashed into Currie, causing him to run into McDonald.

¶ 3. On January 17, 2002, McDonald filed suit against Christian,¹ Currie and Magee, in the Circuit Court of Smith County, Mississippi, claiming he was injured in the accident, and that both Magee and Currie were negligent in the operation of their vehicles. Currie, who also claimed to be injured from the accident, filed a cross-claim against Christian and Magee. McDonald and Currie are both residents of Smith County, Christian is a resident of Pike County, and Magee is a resident of Walthall County, Mississippi.

¶ 4. Christian and Magee moved for a change of venue to Walthall County, arguing that McDonald had fraudulently joined Currie as a defendant to obtain venue in Smith County. In support of their allegation, Christian and Magee argue that McDonald's claims against Currie are subject to the exclusive remedy provision of the Mississippi Workers Compensation Law and, therefore, could not serve as a basis for a claim in circuit court.² Without Currie as a defendant, Christian and Magee point out that McDonald's suit against Magee must be brought in Magee's home county of Walthall.

¶ 5. The trial court denied the motion for change of venue, finding that Currie was a party against whom liability could exist and, thus, was not fraudulently joined. This Court granted permission to bring this interlocutory appeal. See M.R.A.P. 5.

II.

¶ 6. "The standard of review for a transfer of venue is abuse of discretion." Stubbs v. Miss. Farm Bureau Cas. Ins. Co., 825 So.2d 8, 12 (Miss.2002) (citing McCain Bldrs., Inc. v. Rescue Rooter, LLC., 797 So.2d 952, 954 (Miss.2001); Donald v. Amoco Prod. Co., 735 So.2d 161, 180 (Miss.1999)). Furthermore, "[t]he trial judge's ruling will not be disturbed on appeal unless it clearly appears that there has been an abuse of discretion or that the discretion has not been justly and properly exercised under the circumstances." Id. (citing McCain Bldrs., 797 So.2d at 954; Beech v. Leaf River Forest Prods., Inc., 691 So.2d 446, 448 (Miss.1997)). On matters of statutory interpretation, however, we review de novo. Wallace v. Town of Raleigh, 815 So.2d 1203, 1206 (Miss.2002).

¶ 7. Christian and Magee contend that the trial court abused its discretion. They remind us that this Court has held:

Venue is a valuable right possessed by both plaintiff and defendant. See Jefferson v. Magee, 205 So.2d 281, 283 (Miss. 1967)

; Great Southern Box. Co. v. Barrett, 231 Miss. 101, 94 So.2d 912, 915 (1957). `Of right, the plaintiff selects among the permissible venues, and his choice must be sustained [footnote omitted] unless in the end there is no factual basis for the claim of venue.' Flight Line, Inc. v. Tanksley, 608 So.2d 1149, 1155 (Miss.1992).

Forrest County Gen. Hosp. v. Conway, 700 So.2d 324, 326 (Miss.1997) (emphasis added).

III.

¶ 8. The issue before us is fairly uncomplicated. May venue in a circuit court action be set by the residence of a defendant against whom the plaintiff cannot legally pursue a claim? We conclude that the answer to this question is obviously, no. "The test for fraudulent joinder is whether the venue-fixing defendant is a party against whom liability could exist." Stubbs, 825 So.2d at 13. Thus, we must now ask, is Currie "a party against whom liability could exist"? The trial court found that he was. To answer this question, we must examine the Mississippi Workers' Compensation Law (the "Act"), Miss.Code Ann. §§ 71-3-1 to -129 (Rev. 2000 & Supp.2004).

¶ 9. During the hearing on the motion for change of venue, the trial court stated: "I'm going to deny your motion. I don't think the Workers' Comp issue is controlling on that." The trial court subsequently entered an order denying the motion and finding that Currie had not been fraudulently joined because he is a party against whom liability could exist.

¶ 10. Miss.Code Ann. § 71-3-7 (Rev. 2000) provides in pertinent part: "Compensation shall be payable for disability or death of an employee from injury or occupational disease arising out of and in the course of employment, without regard to fault as to the cause of the injury or occupational disease."

¶ 11. Christian and Magee claim, and the facts establish, that the accident occurred — and McDonald was injured — while both McDonald and Currie were in the course and scope of their employment for the same employer. Neither McDonald nor Currie contradict this assertion. At the hearing before the trial court, counsel for Christian and Magee stated it this way:

The two of them [McDonald and Currie] were in Alabama for the sole purpose of performing work related duties, and this, of course, is from their own deposition testimony. They were there driving company vehicles, carrying company equipment and so forth such that the Workers' Compensation Act comes into play, and the two of them were co-workers at the time of the accident.

So, we have one co-worker suing another for negligence, and they were acting, both of them, in the course and scope of their employment.

¶ 12. Counsel then proceeded to present the trial court with controlling authority which establishes that (1) "the Workers' Comp Act applies;" (2) a co-worker enjoys the same immunity from liability as the company; and (3) liability cannot exist against Currie.

¶ 13. Unimpressed with the argument presented by counsel for Magee and Christian, the trial court stated the following: "I'm going to deny your motion. I don't think the Workers' Comp issue is controlling on that, and I'll adopt Mr. King's argument."

¶ 14. Other than adopting "Mr. King's argument," the trial court provided no explanation or basis for his refusal to transfer venue. This brings "Mr. King's argument" front and center for our careful review. We present it in its entirety:

Your Honor, as Ms. Burns just stated, I represent Tim McDonald. I filed this lawsuit. It was stated Mr. McDonald's vehicle was in front. He was struck by Mr. Currie's vehicle who was also struck by the one, the Magee Christian vehicle. I have not been in contact with any Workers' Comp carrier, if there is any, Your Honor, but I elected to file suit both against Mr. Currie and Mr. Christian and Magee.

And, of course, we have that right. You know, if there's any speculation about any Workers' Comp coverage there, you know, they are not here today, but you know, I'm not sure the Workers' Comp carrier would deny any claims that Mr. McDonald might have. My client was injured, and by his deposition he alleges negligence on Mr. Currie and on Mr. Magee.

¶ 15. This argument offered by McDonald's counsel formed the entire basis for the trial court's denial of the motion to transfer venue. We have attempted to identify the portion of this argument which gave comfort to the trial court regarding the correctness of his ruling. Our labors have been in vain. Nothing said by McDonald's counsel even approaches a recognizable argument in favor of allowing a lawsuit to proceed in circuit court against Currie. Indeed, we are unable to find even a misleading argument. In short, McDonald's counsel presented nothing. Thus, the trial court relied on — and adopted — nothing. The law which controls the question presented to the trial court is not complicated or difficult to find. Miss. Code Ann. § 71-3-9 (Rev.2000) has two substantive provisions. The first provides, in part: "The liability of an employer to pay compensation shall be exclusive and in place of all other liability of such employer to the employee...."

¶ 16. We find nothing about the word "exclusive" which could have confused plaintiff's counsel or the trial court. In its order denying the motion, the trial court stated, "The court, having reviewed the motion and heard arguments of counsel, finds the joinder of John Currie as a defendant herein not to have been fraudulent as he is a party against whom liability could exist." (emphasis added). We are left to wonder what the trial court meant by characterizing Currie as "a party against whom liability could exist." McDonald's counsel made no argument to the trial court whatsoever which demonstrated that Currie was "a party against whom liability could exist." Nor did he provide any such authority to this Court.

¶ 17. As stated, the basis for the trial court's refusal to grant the motion was never briefed, argued or explained. The second substantive provision of Miss.Code Ann. § 71-3-9 is, as follows: "if an employer fails to secure payment of compensation as required by this chapter, an injured employee ... may elect to claim compensation under this chapter, or to maintain an action at law for damages on account of such injury...."

¶ 18. However, even a cursory review of Workers' Compensation Law...