McCluskey v. Thompson

• Decision Date: 20 September 1978
• Docket Number: 50011,Nos. 50002,s. 50002
• Citation: 363 So.2d 256
• Parties: Helen L. McCLUSKEY, Administratrix of the Estate of Carol McCluskey, Deceased, v. A. J. THOMPSON et al. BECHTEL POWER CORPORATION and the Travelers Insurance Company v. Helen L. McCLUSKEY etc.
• Court: Mississippi Supreme Court

Page 256

363 So.2d 256

Helen L. McCLUSKEY, Administratrix of the Estate of Carol

McCluskey, Deceased, v. A. J. THOMPSON et al.

BECHTEL POWER CORPORATION and the Travelers Insurance

Company v. Helen L. McCLUSKEY etc.

Nos. 50002, 50011.

Supreme Court of Mississippi.

Sept. 20, 1978.

Rehearing Denied Nov. 1, 1978.

John B. Clark, Daniel, Coker, Horton, Bell & Dukes, Jackson, for Bechtel Power Corp. and Travelers Ins. Co.

Teller, Biedenharn & Rogers, Landman Teller, Vicksburg, for McCluskey.

Watkins & Eager, Hassell H. Whitworth, Jackson, for A. J. Thompson et al.

EN BANC.

SUGG, Justice, for the Court:

Mrs. Helen L. McCluskey brought suit in the Circuit Court of Warren County, against A. J. Thompson, et al., who were coemployees of the decedent, Carol McCluskey, for the alleged wrongful death of the decedent. According to the declaration, plaintiff's husband, Carol McCluskey, was employed by Bechtel Power Corporation which was engaged in the construction of the Grand Gulf Nuclear Power Plant located in Claiborne County. On July 1, 1975, a portable light plant, weighing about 3,000 pounds, fell from a crane and killed McCluskey.

A. J. Thompson demurred to the declaration on the grounds that they owed no individual duty to the decedent and that the Mississippi Workmen's Compensation Act bars a common law tort suit against them as fellow employees for the work-related injuries and death suffered by the decedent. In sustaining the demurrer, the trial court stated "(i)t is the court's opinion that the purpose and spirit and philosophy of the Workmen's Compensation Act was to make compensation the exclusive remedy of the employee where he is injured by the employer or any of the employees." Plaintiff appealed.

The other appellants, Bechtel and Travelers, were named in the declaration as defendants because they paid workmen's compensation benefits to the plaintiff, as the widow of McCluskey. Bechtel and Travelers claimed they would be entitled, pursuant to section 71-3-71 Mississippi Code Annotated (1972), to "the first fruits of the net of any recovery, from such third party defendants here sued." The declaration sought to have them "assert such, if any, claims which they may have in the premises." Bechtel and Travelers demurred on the ground that suit against them was precluded by section 71-3-9 Mississippi Code Annotated (1972), and requested that they be dismissed as defendants without prejudice to their rights to later intervene as plaintiffs under section 71-3-71 Mississippi Code Annotated (1972). In overruling their demurrer the trial court found that although section 71-3-71 establishes a right to intervention, it puts no time limit on the exercise of this right. Finding this to be an undesirable "situation of uncertainty," the trial court "in its common law discretion" ordered that Bechtel and Travelers either intervene within thirty days as party plaintiffs, or disclaim any interest in the proceeds of any recovery by plaintiff. They now appeal from that order.

There are two issues on appeal here:

(1) Whether the trial court erred in finding that workmen's compensation is the exclusive remedy of the employee where he suffers a work-related injury as a result of the negligence of a coemployee; and

(2) Whether the trial court erred in setting a time limit within which an employer or insurer must intervene under section 71-3-71 Mississippi Code Annotated (1972) or disclaim any interest in a third party suit.

The question of whether an employee who is injured because of the negligence of a fellow servant can sue his negligent fellow servant or is limited to benefits under the Workmen's Compensation Act was considered in Stubbs v. Green Brothers Gravel Co., Inc., 206 So.2d 323 (Miss.1968).

Stubbs sued Green Brothers Gravel Co., Inc. and its employee, Jamie Brown, and alleged that he was injured when his vehicle was struck by a truck driven by Brown which was owned by Green. He also alleged that Brown was not keeping a proper lookout, did not have his vehicle under control or in proper repair, and these negligent acts were contributing proximate causes of plaintiff's injuries. Green and Brown denied the charges and specially pled two defenses in bar of the action. The first defense was that Stubbs was an employee of Green, his injuries occurred in the scope of his employment, and the Workmen's Compensation Act was Stubbs' exclusive remedy. The second defense was that Brown and Stubbs were fellow servants of Green at the time of the collision, and each was engaged in the performance of his duties within the scope of his employment at the time of the collision. The trial court sustained the first defense and held that the Workmen's Compensation Act was Stubbs' exclusive remedy. On appeal, we affirmed and stated:

This case is what Larson calls an 'upside-down compensation case,' in the form of a negligence action in which the employee is trying to get out from compensation coverage to escape the exclusive provisions of the act, and the employer is asserting compensation coverage. I Larson, Workmen's Compensation Law § 26.10, at 452.11 (1965). Reason and consistency require that we apply the provisions of the 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. See 2 id. § 65.10 (1961).

In summary, the circuit court was correct in dismissing this tort action, because appellant's exclusive remedy is under the Workmen's Compensation Act. (206 So.2d at 325).

We held that Stubbs' exclusive remedy was under the Workmen's Compensation Act and dismissed his tort action against both his employer and his fellow servant. Our holding in Stubbs prohibited recovery by an injured employee against his fellow servant because his exclusive remedy was under the Workmen's Compensation Act. The opinion did not assign reasons for holding Stubbs' exclusive remedy was under the Workmen's Compensation Act. We therefore deem it necessary to discuss the effect and purposes of the Act. If plaintiff could recover from a fellow servant of the decedent, it would permit an employer or compensation insurer to shift the burden of workmen's compensation benefits to a fellow servant. ¹

The Workmen's Compensation Act was designed to compensate victims of industrial accidents and aid in their rehabilitation and restoration to health and vocational opportunity. Section 71-3-1 Mississippi Code Annotated (1972). The Workmen's Compensation Act represents a wide departure from common law because the Act precludes a common law tort action by an employee against his employer but, in return, assures the employee an award without the necessity of showing fault or negligence on the part of the employer. The legislature has substituted a no-fault compensation system to replace the common law action by employees against employers and thus determined that the cost of this no-fault compensation should be borne by the employing industry. This brings into play the concept of enterprise liability and logically places the burden of providing compensation for industrial injuries upon the employer. Compensation for industrial injuries is rightfully placed upon the employer because, (1) industrial injuries are causally related to the fact of employment, and (2) the employer is in a position to pass this cost to society in the form of higher prices.

If the plaintiff in this action is permitted to recover from the fellow servants of the deceased employee, the employer and carrier would be fully reimbursed for all benefits paid the statutory beneficiaries of the deceased employee. This would effectively transfer the ultimate burden of providing compensation from the industry, where it belongs, to fellow servants, where it does not belong.

We have held that any construction given to the Workmen's Compensation Act must be sensible as well as liberal. Deemer Lumber Co., et al. v. Hamilton, 211 Miss. 673, 52 So.2d 634 (1951); Lucedale Veneer Co. v. Rogers, 211 Miss. 613, 48 So.2d 148 (1950) (suggestion of error overruled211 Miss. 613, 53 So.2d 69 (1951)). Another familiar rule of statutory construction is that 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. Brady v. John Hancock Mut. Life Ins. Co., 342 So.2d 295, appeal dismissed 434 U.S. 804, 98 S.Ct. 32, 54 L.Ed.2d 61 (Miss.1977); Miss. Public Service Commission v. City of Jackson, 328 So.2d 656 (Miss.1976); McCaffrey's Food Market, Inc. v. Mississippi Milk Commission, 227 So.2d 459 (Miss.1969). Also, the intent of the legislature must be determined by studying words used in a statute in context. Akers v. Johnson's Estate, 236 So.2d 437 (Miss.1970).

When these rules of statutory construction are applied to the Workmen's Compensation Act in its entirety, it is apparent that the legislature did not intend to allow an employer or compensation insurer to recover compensation benefits paid by them from a fellow servant of the injured employee.

A number of other states have reached the same conclusion and construed their Workmen's Compensation Acts as a bar to a negligence action by a covered employee seeking damages for the same injuries against a coemployee. Those decisions generally hold that such suits would destroy the purposes of workmen's compensation.

For example, in Madison v. Pierce, 478 P.2d 860 (Mont.1970) an injured employee received a compensation award and then sued three officers and the foreman of her corporate employer. The Montana Compensation Act reserved the injured employee's right to sue: "Some persons or corporations other than his employer." The defendants filed a motion for a summary judgment asserting that the compensation act provided the exclusive remedy for the injured employee. The trial court sustained the motion for summary judgment and the Montana Supreme Court in affirming,...