Morris v. W.E. Blain & Sons, Inc., 56974

• Decision Date: 19 August 1987
• Docket Number: No. 56974,56974
• Citation: 511 So.2d 945
• Court: Mississippi Supreme Court
• Parties: Estate of Jimmy MORRIS, Thelma Morris, Administratrix v. W.E. BLAIN & SONS, INC. and Traffic Control Products, Inc., Jointly and Severally.

Page 945

511 So.2d 945

Estate of Jimmy MORRIS, Thelma Morris, Administratrix v. W.E. BLAIN & SONS, INC. and Traffic Control Products, Inc.,

Jointly and Severally.

No. 56974.

Supreme Court of Mississippi.

Aug. 19, 1987.

Minor F. Buchanan, Jackson, J.E. Boone, New Albany, for appellants.

John C. Henegan, R. Andrew Taggart, Butler, Snow, O'Mara, Stevens & Cannada, Joseph L. McCoy, Lynn Brumfield, McCoy, Wilkins, Noblin & Stephens, Jackson, for appellees.

Before ROY NOBLE LEE, P.J., and DAN M. LEE and GRIFFIN, JJ.

DAN M. LEE, Justice for the Court:

Thelma Morris, Administratrix of the estate of Jimmy Morris, appeals the entry of summary judgment granted against the estate on behalf of W.E. Blain & Sons, Inc. and Traffic Control Products, Inc., defendants below. Ms. Morris brought suit on behalf of the estate seeking $1.5 million in actual damages and $1.5 million in punitive damages for wrongful death under the authority of Miss.Code Ann. Sec. 11-7-13 (1972 & Supp.1986).

The decedent Morris died as a result of injuries suffered when he was hit by a car while working construction on a highway project in Hinds County. Blain & Sons was the prime contractor on the project, and Traffic Control Products was a subcontractor, allegedly responsible for providing traffic and warning signs. Morris was employed by A & B Paint Striping, Inc., another subcontractor.

The trial court granted summary judgment in favor of Blain & Sons and Traffic Control Products on the basis of the exclusive remedy provision of the Workers' Compensation law, Miss.Code Ann. Sec. 71-3-9 (1972), and this Court's decision in Doubleday v. Boyd Construction Co., 418 So.2d 823 (Miss.1982).

ASSIGNMENT OF ERRORS I & II

THE LOWER COURT ERRED IN GRANTING THE MOTION FOR SUMMARY

JUDGMENT OF THE APPELLEES, TRAFFIC CONTROL PRODUCTS, INC.,

AND W.E. BLAIN & SONS, INC., RULING THAT THE EXCLUSIVE

REMEDY PROVISION OF THE WORKERS' COMPENSATION ACT BARRED ANY

RECOVERY IN THIS, A WRONGFUL DEATH ACTION.

For the reasons detailed below, we affirm the summary judgment granted in favor of W.E. Blain & Sons, Inc., but reverse as to Traffic Control Products, Inc.

I. FACTS

July 12, 1984, Jimmy Morris was struck and killed by a car while working near the Bolton interchange of I-20 in Hinds County. He was 39 years old. At the time of his death, Morris was admittedly working in the course and scope of his employment with A & B Paint Striping Co. This day he was part of a two-man team measuring distances for painting lane boundaries and for placement of reflectors marking the lanes.

Morris and a co-worker, Michael Taylor, were working in the area where the traffic merges from the acceleration ramp into the westbound lane of I-20 at the Bolton interchange. Morris was struck by a motorist proceeding down the acceleration ramp.

A & B Paint Striping Co. (hereinafter A & B) was a subcontractor on a highway project on which W.E. Blain & Sons, Inc. (hereinafter Blain & Sons) was the prime contractor. Traffic Control Products, Inc. (hereinafter Traffic Control) was another subcontractor.

Ms. Morris alleged that both defendants owed a duty to provide traffic warnings, the breach of which proximately caused Morris' death.

The extent of Blain & Sons' and/or Traffic Control's duty to post signs or provide other warnings to motorists to protect A & B's workers is disputed. Neither duty nor breach thereof is at issue on appeal, however, since the trial court held that Morris' estate could not recover from either defendant because of the exclusive remedy provision of the Workers' Compensation law.

The contracts between both subcontractors and Blain & Sons required A & B and Traffic Control to provide workers' compensation coverage for their respective employees. There is no dispute that both A & B and Traffic Control had workers' compensation coverage on July 12, 1984, the day of the accident.

Morris' estate received a $100,000 settlement from the insurer of the driver whose automobile struck and killed Morris. Contemporaneous with this settlement, Ms. Morris subsequently filed suit on behalf of the estate against these defendants. After preliminary discovery, defendants independently sought and were granted summary judgment on the basis of Miss.Code Ann. Sec. 71-3-9 (1972) and this Court's decision in Doubleday v. Boyd Construction Co., 418 So.2d 823 (Miss.1982).

II.

A. Ms. Morris initially argues that this statutorily authorized wrongful death action, Miss.Code Ann. Sec. 11-7-13 (1972 & Supp.1986), is not subject to the exclusive remedy provision of the Workers' Compensation Act. Miss.Code Ann. Sec. 71-3-9. She argues two different propositions. First, she maintains the wrongful death statute controls over the Workers' Compensation provision. Second, she argues that the exclusive remedy provision applies in death benefit cases only to those who are dependent on decedent, and thus qualify for benefits. See Miss.Code Ann. Sec. 71-3-25 (1972). We find both claims meritless.

The Workers' Compensation Act exclusive remedy provision, Miss.Code Ann. Sec. 71-3-9 (1972), states:

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.

The pertinent part of Mississippi's wrongful death statute, Miss.Code Ann. Sec. 11-7-13 (1972 & Supp.1986) provides that:

This section shall apply to all personal injuries of servants and employees received in the service or business of the master or employer, where such injuries result in death,....

Ms. Morris argues that since varying forms of this provision predate the Workers' Compensation Act, and the Legislature has reenacted the wrongful death statute with the pertinent language, since the Workers' Compensation Act was enacted, the Legislature intended to allow wrongful death actions despite the employer's exclusive liability provision.

As further support, Ms. Morris notes that Doubleday v. Boyd Construction Co., 418 So.2d 823 (Miss.1982), the case relied on by the trial court below, involved an action for personal injuries rather than wrongful death.

This Court rejected a similar argument where the employee's estate sued the employer in Allen v. R.G. LeTourneau, Inc., 220 Miss. 520, 71 So.2d 447 (1954) Compare, West v. Plastifax, Inc., 505 So.2d 1026, 1028 (Miss.1987) (rejecting similar claim in light of statutory right to damages for loss of consortium). We recognized no distinction between different types of actions when we held that workers' compensation benefits was the exclusive remedy for decedent's estate against a co-employee. McCluskey v. Thompson, 363 So.2d 256 (Miss.1978); Brown v. Estess, 374 So.2d 241 (Miss.1979)

But, Ms. Morris argues, she is not a dependent, and, therefore, she should not be barred. Ms. Morris points out that the Act precludes her recovery of "compensation" for her son's death unless she is "dependent." Miss.Code Ann. Sec. 71-3-25(e). See Dependents of Nosser v. Natchez Jitney Jungle, 511 So.2d 141 (Miss.1987). Thus, she concludes, the Act contemplates that only when the employer is required to pay compensation does the exclusive remedy provision bar suit.

Ms. Morris also takes a second tack. The exclusive remedy provision specifically applies to "parents." However, Ms. Morris argues, the Act defines "parents" as

including stepparents and parents by adoption, parents-in-law or any person who for more than three (3) years prior to the death of the deceased employee stood in the place of a parent to him, or her, if dependent on the injured employee.

Miss.Code Ann. Sec. 71-3-3(m) (1972) (emphasis added)

Therefore, she argues, the Act contemplates that only those parents who are dependent on decedent are barred by the exclusive remedy provision.

Discounting what we consider an inadequate record to determine whether Ms. Morris was indeed a dependent, we follow neither interpretation. The Act did not intend to subject employers to tort liability in all cases where benefits are not actually paid. The pertinent part of the exclusive remedy provision of Sec. 71-3-9, supra, 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...."

We think the Act intends to provide the employer with his exclusive remedy growing out of the employer-employee relationship under the facts in this case. Exceptions as to third parties and non-coverage have been carved out, but these exceptions do not lend themselves to establish tort liability on W.E. Blain & Sons. See Sawyer v. Head, 510 So.2d 472 (Miss.1987); Miller v. McRae's, Inc., 444 So.2d 368, 370 (Miss.1984). Miss.Code Ann. Sec. 71-3-3(b) (Supp.1986). See also, V. Dunn, Workmen's Compensation Sec. 27 at 26 (3d. ed. 1982)

A different result would not only allow Ms. Morris to sue A & B Paint Striping--which she virtually acknowledges she could not do--but would subject an employer in many wrongful death actions to double liability....