Patton-Tully Transp. Co. v. Douglas, 1998-CA-01208-SCT.

• Decision Date: 20 April 2000
• Docket Number: No. 1998-CA-01208-SCT.,1998-CA-01208-SCT.
• Citation: 761 So.2d 835
• Parties: PATTON-TULLY TRANSPORTATION COMPANY v. Jamey L. DOUGLAS, Wendy C. Douglas and Mississippi Casualty Insurance Company.
• Court: Mississippi Supreme Court

761 So.2d 835

PATTON-TULLY TRANSPORTATION COMPANY v. Jamey L. DOUGLAS, Wendy C. Douglas and Mississippi Casualty Insurance Company.

No. 1998-CA-01208-SCT.

Supreme Court of Mississippi.

April 20, 2000.

Rehearing Denied June 15, 2000.

Frank Thackston, Greenville, Attorney for Appellant.

Henry Dean Andrews, Jr., Vicksburg, Gregory Moreau Johnston, Oxford, Attorneys for Appellees.

BEFORE PRATHER, C.J., SMITH AND WALLER, JJ.

SMITH, Justice, for the Court:

STATEMENT OF THE CASE

¶ 1. Patton-Tully Transportation Company ("Patton-Tully") appeals to this Court from the Circuit Court of Warren County, Mississippi, seeking reversal of the judgment for the appellee, Jamey L. Douglas ("Douglas") and Wendy C. Douglas. Jamey and Wendy Douglas filed suit on June 12, 1996, as a result of personal injuries Jamey received while working for B & L Construction Company on a vessel owned by Patton-Tully. The cause of action was based on the general maritime law and 33 U.S.C. § 905(b) under the Longshoremen's and Harbor Workers' Compensation Act (LHWCA).

¶ 2. Patton-Tully moved for summary judgment, claiming that as a matter of undisputed fact and law, Jamey Douglas was its borrowed servant; that his exclusive remedy against Patton-Tully was for benefits under the Longshoremen's and Harbor Workers' Compensation Act ("LHWCA"), and that Patton-Tully was immune from tort suit even if it was guilty of negligence. The trial court denied the motion.

¶ 3. At the end of the plaintiffs' case in chief, Patton-Tully moved for a directed verdict and maintained that Jamey Douglas's own negligence, coupled with that of another co-employee, was the sole cause of his injury and as such Patton-Tully was not liable. The trial court denied this motion. The jury returned a verdict for Douglas and his wife in the amounts of $900,000 and $62,500 respectively. Judgment was entered on that verdict. Patton-Tully moved for judgment notwithstanding the verdict. The trial court denied that motion. The trial court specifically found there were disputed issues of fact concerning whether Douglas was a "borrowed servant" and that there were not enough factors in favor of Patton-Tully for the court to rule as a matter of law that Douglas was a "borrowed servant."

¶ 4. After thorough review, we affirm the judgment of the trial court.

STATEMENT OF THE FACTS

¶ 5. Jamey Douglas was employed as a welder by B & L Construction Company, Inc., in Vicksburg, Mississippi, doing iron work which consists of welding, cutting, and fabricating iron and steel. Douglas had been doing this work for approximately 15 years. B & L Construction is owned and operated by George Cousins ("Cousins") who was Douglas's boss and supervisor. Cousins received a call from Robert Barnes of Anderson-Tully (an affiliated corporation of Patton-Tully) asking if he could send some iron workers down to work on one of Patton-Tully's barges, the John Morris, which had been in an accident. On October 18, 1998, Cousins took Douglas and Donnie McKnight ("McKnight") to the Yazoo Diversion Canal, located in Vicksburg, Warren County, Mississippi, to work on the John Morris. The next day, Douglas and McKnight, along with two Patton-Tully employees, were instructed to lift heavy iron plates from the damaged vessel chest to head high and put them onto a dock barge docked beside the John Morris. Due to the rainy weather conditions and hydraulic oil, the John Morris's deck was extremely slippery, and the men were having to navigate over exposed steel floor joists. The John Morris and the barge docked beside it were pitching up and down due to the rain and wind on the canal that day.

¶ 6. Douglas complained about the conditions and suggested the need for a crane to move the heavy plates. Buddy Turner, Patton-Tully's foreman and supervisor for the work on the John Morris, told Douglas that he could either move the plates or he would find someone else who would. Douglas perceived that he would be sent back to Cousins and possibly lose his job if he did not lift the plates. It is alleged that after Douglas and the other men were lifting an iron plate up to place it on the other barge, one of the Patton-Tully employees slipped or dropped his end of the plate and the balance of the weight shifted to Douglas. Douglas immediately felt something pull in his back. He struggled through work the rest of the day, but by evening he was experiencing stiffness and severe pain. Douglas attempted to return to work on the next day but was unable to do so because the pain was too great. He informed Cousins of his injury after which he was fired the next day by Cousins. Douglas was diagnosed with multiple ruptured discs and underwent two surgeries in an attempt to repair the damage.

¶ 7. Patton-Tully's defense throughout the proceedings is that Douglas was its borrowed servant at the time the injury occurred, which if established, would limit Patton-Tully's liability to compensation under the Longshoremen's and Harbor Workers' Compensation Act 33 U.S.C. § 901 et seq., since Douglas's exclusive remedy would be under that Act.

¶ 8. After the jury heard the testimony and the instructions of law were given by the court, the jury found that Patton-Tully, vessel owner of the John Morris, was negligent in whole or in part which proximately cause an injury or damage to Jamey Douglas. In response to special interrogatories the jury found that Douglas was not contributorily negligent.

STATEMENT OF THE ISSUES

I. WHETHER THE TRIAL COURT ERRED IN DENYING PATTONTULLY'S MOTION TO RULE AS A MATTER OF LAW THAT JAMEY DOUGLAS WAS A BORROWED SERVANT.

II. WHETHER THE TRIAL COURT ERRED IN DENYING PATTONTULLY'S MOTION FOR DIRECTED VERDICT AND JUDGMENT NOTWITHSTANDING THE VERDICT.

III. WHETHER THE TRIAL COURT MADE ERRONEOUS EVIDENTIARY FINDINGS AND IMPROPERLY INSTRUCTED THE JURY.

DISCUSSION OF LAW

I. WHETHER THE TRIAL COURT ERRED IN HOLDING THAT JAMEY DOUGLAS WAS NOT THE BORROWED SERVANT OF PATTON-TULLY—THEREFORE AFFORDING DOUGLAS A NEGLIGENCE ACTION.

Standard of Review

¶ 9. This Court reviews matters involving summary judgment de novo. Jones v. James Reeves Contractors, Inc., 701 So.2d 774, 777 (Miss.1997). A de novo review entails reviewing all evidentiary matters in the record: affidavits, depositions, admissions, interrogatories, etc. The evidence must be viewed in the light most favorable to the nonmoving parties, and they are to be given the benefit of every reasonable doubt. Id. A motion for summary judgment will lie only where there is no genuine issue of material fact, and the moving party is entitled to a judgment as a matter of law. Id.

¶ 10. Patton-Tully's first allegation of error is that the trial court should have ruled, based upon the uncontradicted testimony of others, that as a matter of law Jamey Douglas was Patton-Tully's borrowed servant. Patton-Tully argues that whether Douglas is a "borrowed servant" is an issue of law and should have been decided by the court. Capps v. N.L. Baroid-NL Indus., Inc., 784 F.2d 615, 617 (5th Cir.1986). However, a dispute over whether one is a borrowed servant could still exist although all the facts were stipulated, for it concerns not only the facts themselves but the implications to be drawn from the facts. Gaudet v. Exxon Corp., 562 F.2d 351, 358 (5th Cir.1977).

¶ 11. Patton-Tully rests on the nine-factor test used by the Fifth Circuit to determine borrowed employee status to allege that Douglas is its borrowed servant. These nine factors are: (1) Who has control over the employee and the work he is performing, beyond mere suggestions of details or cooperation; (2) Whose work is being performed; (3) Was there an agreement, understanding, or meeting of the minds between the original and the borrowing employer; (4) Did the employee acquiesce in the new work situation; (5) Did the original employer terminate his relationship with the employee; (6) Who furnished tools and place for performance; (7) Was the new employment over a considerable length of time; (8) Who had the right to discharge the employee; (9) Who had the obligation to pay the employee. Ruiz v. Shell Oil Co., 413 F.2d 310, 312-13 (5th Cir.1969).

¶ 12. In this maritime personal injury suit, the principal question at issue is whether an injured employee was a borrowed servant at the time of his injury. If so, the injured employee's exclusive remedy would be for workmen's compensation rather than for damages in tort. Id. at 311. The question of whether a worker is a "borrowed servant" at a particular time is one which has perplexed this Court and others for decades. Jones, 701 So.2d at 777. Ruiz failed to detail how the test should be applied, which factors are to be given primary weight, and which factors, if any, are controlling. Gaudet v. Exxon Corp., 562 F.2d 351 (5th Cir.1977). The court went on to say in Ruiz that, "no one of these factors, or any combination of them, is decisive, and no fixed test is used to determine the existence of a borrowed-servant relationship." 413 F.2d at 312.

¶ 13. In Clark v. Luther McGill, Inc., 240 Miss. 509, 127 So.2d 858 (1961), the Court said:

What gives the lent-employee cases their special character, however, is the fact that they begin, not with an unknown relation, but with an existing employment relation. The only presumption is the continuance of the general employment which is taken for granted as the beginning of any lent-employee problem. To overcome this presumption, it is not unreasonable to insist upon a clear demonstration that a new temporary employer has been substituted for the old, which demonstration should include a showing that a contract was made between the special employer and the employee, proof that the work being done was essentially that of the special employer, and proof that the special employer assumed the right to control details of the work. Id. at 518.

¶ 14. This Court in Quick Change Oil & Lube, Inc. v. Rogers, 663 So.2d 585 (Miss. 1995),...