Crowe v. Brasfield & Gorrie General Contractor, Inc., 96-FC-00482-SCT

• Decision Date: 19 December 1996
• Docket Number: No. 96-FC-00482-SCT,96-FC-00482-SCT
• Citation: 688 So.2d 752
• Parties: John David CROWE v. BRASFIELD & GORRIE GENERAL CONTRACTOR, INC. and FaBarc Steel Supply, Inc.
• Court: Mississippi Supreme Court

Page 752

688 So.2d 752

John David CROWE v. BRASFIELD & GORRIE GENERAL CONTRACTOR, INC. and FaBarc Steel Supply, Inc.

No. 96-FC-00482-SCT.

Supreme Court of Mississippi.

Dec. 19, 1996.

En Banc.

DAN LEE, Chief Justice, for the Court:

This case is before this Court upon certification from the United States Court of Appeals for the Fifth Circuit. The question certified to this Court is as follows:

WHETHER MISSISSIPPI'S WORKER'S COMPENSATION ACT EXTENDS IMMUNITY TO A GENERAL CONTRACTOR OR A SUBCONTRACTOR IN A NEGLIGENCE ACTION BROUGHT AGAINST THEM BY THE EMPLOYEE OF A SUB-SUBCONTRACTOR?

We answer the question in the affirmative.

FACTS

Appellee, Brasfield & Gorrie General Contractor, Inc. (Brasfield), was the general contractor for the Gayfer's department store during the construction of the Turtle Creek Mall in Hattiesburg. Brasfield subcontracted the structural steel work on the project to Appellee, FaBarc Steel Supply, Inc. (FaBarc). Thereafter, FaBarc contracted with Model City Erection (Model) to do portions of the steel work. Brasfield contractually required FaBarc to obtain workers' compensation coverage for FaBarc's employees, and FaBarc contractually required Model to purchase workers' compensation insurance for Model's employees.

Appellant, David Crowe, was employed by Model as an iron worker. While engaged in his work for Model, Crowe was injured when he fell nineteen feet. Crowe received serious injuries which resulted in permanent disability. A claim for benefits was made and Model's workers' compensation insurance carrier began paying benefits to Crowe.

Crowe then filed a negligence action against Brasfield and FaBarc. Brasfield and FaBarc moved for summary judgment on the basis that the Mississippi Workers' Compensation Act was Crowe's sole remedy and thus Crowe's negligence action was barred.

The United States District Court for the Southern District of Mississippi, after a hearing on the matter, concluded that the purpose of the Workers' Compensation Act was to ensure that a worker had coverage. The district court held that since FaBarc required that Model provide its employees with workers' compensation coverage, and Model did in fact provide such coverage, FaBarc was protected by the Workers' Compensation Act's statutory immunity provisions. The court found that had Model not provided workers' compensation coverage to Crowe, FaBarc would have been obligated to do so. Likewise, the court reasoned that if neither Model nor FaBarc had provided insurance for its employees, then Brasfield would have been obligated to insure the workers. The court then held that since Model did provide workers' compensation insurance for its employees, both Brasfield and FaBarc were immune from Crowe's negligence suit by the Workers' Compensation Act. Accordingly, the district court granted Brasfield's and FaBarc's motions for summary judgment. The granting of these motions is the subject of the appeal now before the United States Court of Appeals for the Fifth Circuit, from whence this certification arose.

DISCUSSION

WHETHER MISSISSIPPI'S WORKER'S COMPENSATION ACT EXTENDS IMMUNITY TO A GENERAL CONTRACTOR OR A SUBCONTRACTOR IN A NEGLIGENCE ACTION BROUGHT AGAINST THEM BY THE EMPLOYEE OF A SUB-SUBCONTRACTOR?

We begin our analysis of the Mississippi Workers' Compensation Act reminded that this Court has previously addressed the issue of workers' compensation coverage and immunity and has stated:

Reason and consistency require that we apply the provisions of the [workers' compensation] act and the decisions interpreting it with an equal hand, both where coverage is asserted and where the exclusive remedy provisions of the statute are involved.

Stubbs v. Green Brothers Gravel Co., 206 So.2d 323, 325 (Miss.1968).

Crowe argues that, since Miss.Code Ann. § 71-3-7 (1972) does not compel general contractors to provide workers' compensation insurance for the employees of sub-subcontractors, general contractors are not afforded immunity from negligence suits through the exclusive remedy provision of Miss.Code Ann. § 71-3-9 (1972). Brasfield and FaBarc argue that, if Model had not provided workers' compensation coverage to Crowe, then they would have been responsible for providing the coverage and, therefore, they are entitled to immunity under Miss.Code Ann. § 71-3-9 (1972).

This is a case of first impression. We have not addressed this situation in a published opinion. Moreover, few other jurisdictions have confronted this question through published opinions. Those jurisdictions which have addressed this issue have held that the general contractor and subcontractor have statutory immunity from negligence actions brought by employees of the sub-subcontractor when the sub-subcontractor had workers' compensation insurance. See Mathew v. Aetna Cas. And Sur. Co., 578 So.2d 242, 244 (La.Ct.App.1991); Fred G. Wright, Inc. v. Edwards, 642 So.2d 808, 809 (Fla.Dist.Ct.App.1994); Dodge v. William E. Arnold Co., 373 So.2d 98, 100 (Fla.Dist.Ct.App.1979).

Crowe frames the argument as a dispute over the meaning of the term "subcontractor" found in Miss.Code Ann. § 71-3-7 (1972). Section 71-3-7 provides in relevant part:

In the case of an employer who is a subcontractor, the contractor shall be liable for and shall secure the payment of such compensation to employees of the subcontractor, unless the subcontractor has secured such payment.

Crowe argues for a strict and limited interpretation of Section 71-3-7. That is, since Crowe was employed by a sub-subcontractor, and since the statute does not specifically mention sub-subcontractors, Crowe argues that Brasfield has no legal basis for its claim that it is immune from Crowe's suit.

We have defined a "subcontractor" as "one who has entered into a contract express or implied, for the performance of an act, with a person who has already contracted for its performance." O'Neal Steel Company v. Leon C. Miles, Inc., 187 So.2d 19, 25 (Miss.1966) (quoting Holt & Bugbee Co. v. City of Melrose, 311 Mass. 424, 41 N.E.2d 562, 563 (1942)). When faced with situations similar to the one presented here, several other jurisdictions have held that employees of a sub-subcontractor are covered within their employer's workers' compensation insurance provisions. See, e.g., Stolte, Inc. v. Eighth Judicial District Court, 89 Nev. 257, 510 P.2d 870, 871 (1973); Palumbo v. Nello L. Teer Co., 240 F.Supp. 226 (D.Md.1965); Kieffer v. Walsh Construction Co., 140 F.Supp. 318 (D.Pa.1956); Baker & Conrad Inc. v. Chicago Heights Constr. Co., 364 Ill. 386, 4 N.E.2d 953 (1936). The Illinois court in Baker & Conrad, supra, stated:

The term "subcontractor" is not spoken in a technical sense, but includes not only those contracting directly with the original contractor, but also those who have contracted with one whose contract is subordinate to a previous agreement, regardless of whether it is the original or general contract. Such persons are all "subcontractors," although they may be removed in different degrees from the original contract. No distinctions are recognized in the applicability of the act as to "contractors or to subcontractors," as those terms are customarily recognized, or even those still further removed in the chain of contracts descending from the original contract. The act was intended to embrace all laborers rendering services in the advancement of their employer's business....

4 N.E.2d at 958.

Model, Crowe's employer, contracted with FaBarc to complete portions of the steel work on the Turtle Creek Mall. FaBarc had previously contracted with Brasfield to do the structural steel work on the mall. Model entered into an express contract with FaBarc for the performance of an act (the completion of portions of the steel work) which FaBarc had already contracted to complete. Thus, under our case law, Model satisfied the definition of a subcontractor. Accordingly, it is the opinion of this Court that both Brasfield and FaBarc are protected by the exclusive remedy provision of the Workers' Compensation Act found at Miss.Code Ann. § 71-3-9 (1972).

In regard to our workers' compensation law, we have held

that "any construction given to the workmen's compensation act must be sensible as well as liberal," and "the intent of the legislature must be determined by the total language of the statute and not from a segment considered apart from the remainder."

Doubleday v. Boyd Constr. Co., 418 So.2d 823, 826 (Miss.1982) (quoting McCluskey v. Thompson, 363 So.2d 256, 259 (Miss.1978)). In Doubleday we looked to Florida case law for guidance when deciding whether the injured employee of a subcontractor could sue the general contractor for negligence. We held that the injured employee could not sue the general contractor where his injuries were compensated through the subcontractor's workers' compensation policy and stated:

We agree with this decision even though Fla.Stat.Ann. § 440.10 ¹ (West 1981) differs somewhat from Miss.Code Ann. § 71-3-7 (1972). It is our opinion [that] the legislature did not intend to subject a general contractor to common law liability if he complied with § 71-3-7 by requiring the subcontractor to have workmen's compensation insurance. It would defeat the purpose of the statute, we think, if such an improbable result followed.

Mosley, supra, reaches the same result. In it Mosley protected itself from common law tort liability by procuring workmen's compensation insurance for the employees of its subcontractor. Boyd accomplished the same end by contractually requiring Ratliff to secure a policy of insurance on its employees. In doing so, we are of the opinion that the appellee "secured" compensation insurance for the benefit of Doubleday within the meaning and purpose of the statute. Therefore, appellee is not, under the circumstances of this case, "any other party" as designated by § 71-3-71 and thus is immune from a common law negligence action.

Doubleday, 418 So.2d...