Falls v. Mississippi Power & Light Co.

• Decision Date: 28 August 1985
• Docket Number: No. 54940,54940
• Citation: 477 So.2d 254
• Court: Mississippi Supreme Court
• Parties: Robert FALLS, et al., v. MISSISSIPPI POWER & LIGHT COMPANY.

Page 254

477 So.2d 254

Robert FALLS, et al., v. MISSISSIPPI POWER & LIGHT COMPANY.

No. 54940.

Supreme Court of Mississippi.

Aug. 28, 1985.

Rehearing Denied Oct. 2, 1985.

Fredrick B. Clark, Greenwood, Don Barrett, Barrett, Barrett, Barrett & Patton, Lexington, for appellants.

David H. Nutt, Jackson, for appellee.

Before ROY NOBLE LEE, P.J., and ROBERTSON and SULLIVAN, JJ.

ROY NOBLE LEE, Presiding Justice, for the Court:

The Circuit Court of Holmes County granted a summary judgment in favor of Mississippi Power & Light Company on a wrongful death claim filed by Robert Falls and other family members on the account of the electrocution death of Henry Lee Falls. The Falls have appealed to this Court and assign the following error in the lower court's decision:

The lower court committed reversible error in holding that, as a matter of law, Mississippi Power & Light Company was the statutory employer of appellants' decedent, and, as such, appellants' exclusive remedy is a workmen's compensation claim.

The complaint charged that on August 26, 1982, the deceased, while employed by the Deviney Company, was trimming and cutting the tops from pine trees under and around appellee's high voltage power lines on the Natchez Trace Parkway near Port Gibson, Mississippi, pursuant to his instructions; that one of the tree tops fell upon the appellee's power lines, resulting in deceased's electrocution and death; and that the appellee negligently installed and maintained its power lines, which negligence proximately caused or contributed to Falls' death. The complaint further charged that the Deviney Company was an independent contractor; that decedent was an employee of the Deviney Company; and that the negligence of appellee caused decedent's death.

Appellee answered and denied that it was negligent, it admitted that Deviney is an independent contractor and that decedent was Deviney's employee. Appellee also stated four affirmative defenses and filed an amended answer alleging that appellee was the statutory employer of decedent and that appellants' exclusive remedy is a workmen's compensation claim. This is the sole question involved in the appeal.

Appellants concede that, if appellee was decedent's statutory employee, then appellee is immune from third party liability, since under such a relationship, appellee would have a duty to provide for workmen's compensation, either through itself or a subcontractor.

The National Park Service granted a special use permit to appellee for the period March 1, 1976, through December 31, 1985, over the Natchez Trace Parkway, for the purpose of providing electrical service to its customers through distribution and transmission lines in the area served by Mississippi Power & Light Company, subject to certain conditions and restrictions. Appellee was permitted to keep its right-of-way clear of trees, brush and stumps, and, in doing so agreed to abide by requirements of the special use permit.

Appellee contends, and so persuaded the lower court, that under the special use permit it became a contractor and, in this case, a prime contractor, or owner contractor; that the Deviney Company was its subcontractor; and that, therefore, the decedent became its statutory employee, which conferred immunity upon it from a third party common-law action.

The contract executed between appellee and the Deviney Company contained the following language under Paragraphs (1) and (4):

1. Contractor agrees, at his sole cost and expense, to perform all the labor and services and furnish all the tools and equipment necessary to complete in good, substantial, workmanlike and approved manner, the work hereinafter specified and referred to, and to perform the same in accordance with plans and specifications furnished by the Owner and conditions and provisions of this agreement hereinafter mentioned.

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4. Contractor shall effect, maintain and furnish evidence of insurance satisfactory to the owner in the following minimum amounts:

(a) Workmen's Compensation Insurance for operations in the State of Mississippi, including Employers Liability Insurance in the minimum amount of $100,000.00.

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Contractor shall, before commencing work on this contract, deliver to Mississippi Power & Light Company, attention: Insurance Manager, P.O. Box 1640, Jackson, Ms. 39205, certificates from insurance companies, or their agents, stating that said insurances are in force and that they will give Mississippi Power & Light Company ten (10) days written notice prior to the effective date of any change or cancellation of any of the policies, such certificates to be on forms provided by the Owner.

Appellee contends (1) that it was a statutory employer of the decedent and is protected from tort liability under the provisions of Mississippi Code Annotated Sec. 71-3-9 (1972), and (2) that appellee was also decedent's statutory employer because it contractually required Deviney Company to carry workmen's compensation on the decedent. The answer to those positions are dispositive of the legal issue before this Court.

Mississippi Code Annotated Sec. 71-3-7 (1972) provides in part, the following:

Every employer to whom this chapter applies shall be liable for and shall secure the payment to his employees of the compensation payable under its provisions.

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.

Section 71-3-71, among other things, provides that the acceptance of compensation benefits from, or making a claim for compensation against an employer or insurer for the injury or death of an employee shall not affect the rights of the employee or his dependents to sue any other party at law for such injury or death.

Under Sec. 71-3-71, liability to secure workmen's compensation covering the decedent attaches only (1) if he was an employee of appellee, which appellee admits he was not; and (2) appellee had qualified as a contractor (prime) and the Deviney Company had qualified as a subcontractor within the meaning of Sec. 71-3-7. Appellee contends that the special use permit executed by appellee and the National Park Service constituted a contract as specified in Sec. 71-3-7; that the Deviney Company became the subcontractor; and that appellee is within the statute and immune from a third party claim.

In a supplemental brief, citing authorities from other jurisdictions, appellee also takes the position that, if an owner or principal contracts a portion of its normal trade, business or occupation to be performed by another, then the entity performing that work is the agent of the owner; and that, since construction and maintenance of appellee's distribution facilities were part of its business, it became the statutory employer of Deviney Company and Deviney's employees.

Appellee cites and relies upon Dagenhardt v. Special Machine & Engineering, 418 Mich. 520, 345 N.W.2d 164 (1984), wherein the Michigan Court said:

In any event, it does not alter the worker's disability compensation scheme, i.e., the party liable to pay disability compensation benefits is immune from tort liability. The contrary result reached by the Court of Appeals in this case unfairly imposes two burdens upon a principal which are never imposed upon an injured worker's direct employer.

345 N.W.2d at 169.

Appellee urges that the same reasoning in Dagenhardt applies to the case sub judice and that appellee would be subject to dual liability without the benefit of exclusive remedy. ¹ Appellee also cites cases from the Louisiana jurisdiction, viz, Rachal v. Audubon Park Commission, 467 So.2d 1281 (La.App.1985); Rowe v. Northwestern National Insurance Company, 461 So.2d 603 (La.App.1984); Brown v. Ebasco Services, Inc., 461 So.2d 443 (La.App.1984); Klohn v. Louisiana Power & Light Co., 394 So.2d 636 (La.App.1981); and Gray v. Louisiana Power & Light Co., 247 So.2d 137 (La.App.1971); and Va.Code Annotated Secs. 65-28 and 65-29 (1950).

Those decisions are distinguished from the present case because the state statutes are different from the Mississippi statutes, and this Court has decided the issue adversely to appellee's position.

Appellee argues that Doubleday v. Boyd Construction Co., 418 So.2d 823 (Miss.1982), and Nations v. Sun Oil Co., 695 F.2d 933 (5th Cir.1983), support its position. Appellants agree that those cases were correctly decided, but say that Doubleday does not apply to the case sub judice.

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