Magee v. Transcontinental Gas Pipe Line Corp., 58579

• Decision Date: 02 August 1989
• Docket Number: No. 58579,58579
• Citation: 551 So.2d 182
• Parties: Mrs. James C. MAGEE, Administratrix of the Estate of James C. Magee, Deceased v. TRANSCONTINENTAL GAS PIPE LINE CORPORATION and Singley Construction Company.
• Court: Mississippi Supreme Court

Page 182

551 So.2d 182

Mrs. James C. MAGEE, Administratrix of the Estate of James C. Magee, Deceased v. TRANSCONTINENTAL GAS PIPE LINE CORPORATION and Singley Construction Company.

No. 58579.

Supreme Court of Mississippi.

Aug. 2, 1989.

Rehearing Denied Oct. 4, 1989.

Crymes G. Pittman, Cothren & Pittman, Jackson, for appellant.

John E. Wade, Jr., Brunini, Grantham, Grower & Hewes, Rexford T. Brown, Downey & Brown, Jackson, Donald E. Hockaday, III, Houston, Tex., for appellee.

Before ROY NOBLE LEE, C.J., and ROBERTSON and PITTMAN, JJ.

ROBERTSON, Justice, For the Court:

I.

Though rather easily within the coverage of the Mississippi Workers' Compensation Act, today's claimant--administratrix of the estate of a welder injured on a natural gas pipe laying project--proceeds in tort. Denying employment status, administratrix sues the pipe laying contractor for whom her deceased husband worked. Beyond that, she moves against the project owner, notwithstanding that de jure and de facto control of the pipe laying process had been lawfully vested in the contractor.

The Circuit Court summarily exonerated each defendant. As Administratrix offered no cognizable evidence that might be said to generate any genuine issue of material fact, we affirm.

II.

A.

Transcontinental Gas Pipe Line Corporation ("Transco") is a Delaware corporation doing business in Mississippi. Transco purchases natural gas from fields in Texas, Louisiana and Mississippi and transports this gas through an extensive interstate pipeline system to its customers in the Northeast.

Singley Construction Company ("Singley") is a Mississippi corporation located in Columbia, Mississippi. On April 2, 1982, in order to connect a newly producing well with its existing system, Transco contracted with Singley whereby Singley agreed to construct approximately 8.6 miles of underground pipeline in Jefferson Davis, Lamar and Marion Counties. The right-of-way had been procured by Transco. Soon thereafter Singley began work on the construction project.

James C. Magee, born December 13, 1923, was a journeyman welder. He began work for Singley on the Transco pipeline construction project on April 22, 1982 after a Transco employee had administered a "welding examination" to assess his skills. Singley paid Magee at the predetermined rate of $25.00/hour. As is the practice in the industry, Magee provided his own welding equipment while Singley provided the materials. During the construction of the pipeline, a Transco employee would periodically inspect the quality of Singley's work, including that done by Magee.

Singley took control of the worksite, used its equipment to excavate a v-shaped trench, and began laying pipe therein. On June 2, 1982, Magee was working in a trench, lining up a section of ten-inch pipe suspended by a cable. The trench bank caved in, dislodging the pipe, which struck Magee and fractured his left leg in the area of his knee. He was treated at a local hospital and was released. He returned to the hospital two days later for surgical correction of the fracture. Fidelity and Guaranty Insurance Underwriters, Singley's workers' compensation insurance carrier, provided coverage for Magee's medical costs.

B.

On July 18, 1984, Magee commenced this civil action by filing his complaint in the Circuit Court of the First Judicial District of Hinds County. Magee named Singley and Transco as defendants and charged that each was "guilty of negligence, which was the proximate cause ... of the accident in question and the injuries sustained therein by plaintiff."

In answering the complaint, Singley advanced the defense that, since at the time the accident occurred Magee was engaged in its employ, his exclusive remedy as against Singley was via the Mississippi Workers' Compensation Act. Miss.Code Ann. Sec. 71-3-9 (1972).

Transco's answer argued, first, that Singley, as an independent contractor, had assumed responsibility for the safety of the workplace and its employees, by reason of which Transco could not be held liable for the negligent maintenance of the construction site. Second, Transco alleged that, because it had contractually compelled Singley to procure workers' compensation insurance, it was immune from suit--i.e. the "statutory employer" defense.

On December 6, 1984, James C. Magee died of a heart attack, a cause unrelated to the present action, and his widow as administratrix was substituted as the party plaintiff in this matter.

On May 27, 1986, Transco moved for summary judgment. Two days later Singley filed a like motion. Magee offered no evidence or sworn testimony in opposition. On December 12, 1986, the Circuit Court granted both motions, stating only that "these motions are well taken and should be granted." Final judgment was entered in favor of both Singley and Transco, finally dismissing Magee's Administratrix' complaint.

This appeal has followed.

III.

Magee's Administratrix argues that the Circuit Court erred when it entered judgment in favor of Transco. She contends there are reflected in the record and in proper form genuine issues of material fact precluding summary judgment. Rule 56(c), Miss.R.Civ.P. Since the Circuit Court failed to give the basis of its ruling, though we must presume it had something in mind, we consider the defenses asserted below that have promise as possible bars to the action.

A.

On Transco's "statutory employer" defense, ¹ Magee's Administratrix is more than right. Indeed, Transco does not seriously press the point.

Transco purchased the right-of-way for the pipeline and then contracted the construction of the project in its entirety to Singley. Nothing in Miss.Code Ann. Sec. 71-3-7 (1972) imposed upon Transco the duty to secure or pay compensation to Singley's employees. Because Transco was not a "contractor", and because Singley had secured compensation for Magee's benefit, the Act imposed no duties on Transco. Accordingly, Transco enjoys no benefits under the Act. Transco may not gain tort immunity by assuming compensation obligations which in fact and in law it did not have. Transco's position is indistinguishable from that of the "owners" in Nash v. Damson Oil Corp., 480 So.2d 1095 (Miss.1985) and Falls v. Mississippi Power & Light Co., 477 So.2d 254 (Miss.1985); see also Amoco Production Co. v. Murphy, 528 So.2d 1123, 1124 (Miss.1988). That Transco required Singley to procure compensation coverage, "though laudable, does not grant the immunity." Nash, 480 So.2d at 1101 (R.N. Lee, [then] P.J., concurring).

Morris v. W.E. Blain & Sons, Inc., 511 So.2d 945, 948-49 (Miss.1987) avails Magee's Administratrix nothing as there is no evidence before this Court suggesting that Magee and Singley were co-subcontractors of Transco.

B.

As an alternative theory of exoneration, Transco claims that the cognizable facts are without contradiction that Singley had complete control over the manner and method of the construction of the pipeline, and, as well, the premises.

The Transco-Singley contract provides that Singley should "assume full and complete responsibility for" the "conditions pertaining to the Work, the site of the Work or its surroundings, and all risks in connection therewith." ² Singley assumed responsibility for the care and maintenance of the work until completed and accepted by Transco. ³ Moreover, Singley obligated itself to "take all necessary precautions for the safety of its employees." ⁴

Before the Court as well are the affidavits of Singley's construction foreman and Transco's on-site welding inspector. The substance of these affidavits is as follows:

(1) Singley maintained control over safety of the worksite.

(2) Singley had control over the manner of construction of the pipeline, including the excavation of the trench.

(3) Singley furnished all of the tools employed in the process of clearing and trenching the right-of-way.

(4) Singley provided all of the employees for the project.

Moreover, George Prescott, Transco's on-site pipeline inspector, testified by affidavit that Singley retained complete control "over the methods and manner in which the pipeline was constructed", including the excavation of the trench, the details of the pipeline construction, the payment of employees, and work-site safety. Transco, according to the affidavit testimony, would merely inspect periodically the work of the Singley employees.

Significantly, Magee did not dispute these material facts by counter-affidavit or otherwise.

Where a party such as Transco contracts with another such as Singley to perform original construction or repair work, or, as here, the laying of pipe, and devolves upon the contractor the right and fact of control of the premises and the nature and details of the work, the owner has no liability for injuries experienced by the contractor's workers where those injuries arose out of or were intimately connected with the work. Arising in varying factual settings, our authorities to this general effect are quite clear. See, e.g., Hathorn v. Hailey, 487 So.2d 1342, 1344-45 (Miss.1986); Fortenberry Drilling Company, Inc. v. Mathis, 391 So.2d 105, 106 (Miss.1980); Spruill v. Yazoo Valley Oil Mill, Inc., 317 So.2d 410, 413 (Miss.1975); Mississippi Power Co. v. Brooks, 309 So.2d 863, 866-67 (Miss.1975); Jackson Ready-Mix Concrete v. Sexton, 235 So.2d 267, 271 (Miss.1970). The fact that Transco had employees that conducted periodic inspections on the work could change nothing. Mississippi Power Co. v. Brooks, 309 So.2d at 867.

What is critical is whether the project owner maintains any right of control over the performance of that aspect of the work that has given rise to the injury. Fruchter v. Lynch Oil Co., 522 So.2d 195 (Miss.1988); White's Lumber & Supply Co. v. Collins, 186 Miss. 659, 672, 191 So. 105, 106 (1939); Kisner v. Jackson, 159 Miss. 424, 430, 132 So. 90, 92 (1931). In this setting the undisputed language of the contract becomes important. ⁵ Specifically, ...