Lorenzen v. South Central Bell Telephone Co.

• Decision Date: 12 August 1982
• Docket Number: Civ. A. No. J79-0471(N).
• Parties: Keith W. LORENZEN, Plaintiff, v. SOUTH CENTRAL BELL TELEPHONE COMPANY, Defendant and Third Party Plaintiff, v. CLEARVIEW OF CLINTON, INC., Third Party Defendant and Counterclaimant.
• Court: U.S. District Court — Southern District of Mississippi

546 F. Supp. 694

Keith W. LORENZEN, Plaintiff, v. SOUTH CENTRAL BELL TELEPHONE COMPANY, Defendant and Third Party Plaintiff, v. CLEARVIEW OF CLINTON, INC., Third Party Defendant and Counterclaimant.

Civ. A. No. J79-0471(N).

United States District Court, S. D. Mississippi, Jackson Division.

August 12, 1982.

Alan L. Moore, Jackson, Miss., for plaintiff Lorenzen.

W. Scott Welch, III, Roger M. Flynt, Jr., Jackson, Miss., for defendant and third party plaintiff South Central Bell Tel. Co.

Rexford T. Brown, Jackson, Miss., for Clearview of Clinton, Inc.

MEMORANDUM OPINION

WALTER L. NIXON, Jr., District Judge.

This cause came on for hearing before the Court on July 21, 1982 at Biloxi, Mississippi. The Court has carefully considered the briefs of the parties, the authorities cited therein, and the arguments of counsel. In addition, the Court is thoroughly familiar with this matter, from its prior handling of it. The Court has also considered the affidavits of John A. Johnson and W. Scott Welch, III which were attached to the Motion for Summary Judgment filed by South Central Bell Telephone Company ("South Central Bell"); all pleadings on file in this case; the Pre-Trial Order; and the depositions of J.A. Johnson and Ronnie Slaughter. Having fully considered the matters hereinabove set forth, the Court is now prepared to enter its Memorandum Opinion as follows:

For purposes of this memorandum opinion, the facts may be briefly stated.

South Central Bell is a regulated telephone public utility, providing a comprehensive general telephone service in Mississippi. As such utility, South Central Bell maintains and operates telephone facilities in Mississippi, including telephone poles and aerial telephone wires in certain municipal streets and certain other locations. Clearview of Clinton, Inc. ("Clearview") is a cable television company that provides cable television (CATV) service in Clinton, Mississippi. Subsequent to the filing of this suit Clearview's name was changed to Clearview Management Corp.; and "Clearview" has been used as to both.

On or about July 31, 1978, South Central Bell entered into a "License Agreement for Pole Attachments" with Clearview, under the terms of which South Central Bell agreed to grant revocable licenses authorizing Clearview to maintain its television distribution cables on the telephone poles of South Central Bell in Clinton, Mississippi. Pursuant to the License Agreement, Clearview is obligated to pay a nominal rental of $1.50 per year for each telephone pole to which it attaches its equipment; South Central Bell receives no other benefit from Clearview for the attachments. This license agreement contained a broad indemnity agreement in favor of South Central Bell, which is quoted in a subsequent part of this opinion.

On April 7, 1979, Lorenzen, an employee of Clearview, climbed a telephone pole in Clinton, Mississippi, for the purpose of attaching a television "drop" from the pole to a house which was to receive CATV service. While Lorenzen was working on the pole, the pole broke. Lorenzen fell to the ground and was seriously injured. Subsequently, Lorenzen was paid workmen's compensation benefits by New Hampshire Insurance Company, Clearview's insurance carrier.

Lorenzen filed the present suit against South Central Bell, alleging that his injury was caused by the negligence of South Central Bell. New Hampshire intervened. South Central Bell filed an answer and a third-party complaint against Clearview. The third-party complaint alleged that under the terms of the "License Agreement" between South Central Bell and Clearview, Clearview was obligated to indemnify and hold harmless South Central Bell from claims by all parties including employees of Clearview.

In 1981, South Central Bell settled Lorenzen's and New Hampshire's claims for $75,000. South Central Bell has now filed its motion for summary judgment on its third-party claim against Clearview seeking reimbursement. Clearview has filed a counterclaim against South Central Bell seeking recovery or set-off of $8,823.58 which is the difference between the total amount of Lorenzen's workmen's compensation benefits and the amount for which New Hampshire settled. Clearview has also filed a motion for summary judgment on the counterclaim and cross motion for summary judgment on the third-party claim.

The first question for consideration is whether South Central Bell may bring this action for indemnity in light of the "exclusive remedy" provisions of the Mississippi Workmen's Compensation Act, § 71-3-9 Mississippi Code of 1972, Annotated, which in pertinent part provides:

"The liability of an employer to pay compensation shall be exclusive and in place of all other liability of such employer to the employee, his legal representative, husband or wife, parents, dependents, next-of-kin, and anyone otherwise entitled to recover damages at common law or otherwise from such employer on account of such injury or death, except that if an employer fails to secure payment of compensation as required by this chapter, an injured employee, or his legal representative in case death results from the injury, may elect to claim compensation under this chapter, or to maintain an action at law for damages on account of such injury or death. In such action the defendant may not plead as a defense that the injury was caused by the negligence of a fellow servant, nor that the employee assumed the risk of his employment, nor that the injury was due to the contributory negligence of the employee."

If this were a case in which South Central Bell were seeking indemnity on a theory of implied indemnity or on a theory of "active-passive" negligence, South Central Bell would clearly be prohibited from maintaining this action. Here, however, South Central Bell and Clearview entered into an express indemnity contract and it is upon said contract that South Central Bell bases its claim for indemnity as to the amounts it paid Clearview's employee in settlement of this third-party action and its attorneys' fees and expenses incurred in the defense of the third-party action.

The existence of the express indemnity agreement between Clearview and South Central Bell takes this case outside the prohibition of § 71-3-9, Mississippi Code of 1972, Annotated and brings this case within the majority rule recognized in Anno., 100 ALR.3d 356; and Ball v. Oregon Erecting Co., 273 Or. 179, 539 P.2d 1059, 1061-63 (1975), that workmen's compensation acts do not bar a claim for indemnity by the third-party from the employer when that claim is based on an express...