Perkins v. Insurance Co. of North America

• Decision Date: 12 September 1986
• Docket Number: No. 85-4753,85-4753
• Parties: H.G. PERKINS, Plaintiff-Appellant, v. INSURANCE COMPANY OF NORTH AMERICA, Defendant-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 955

799 F.2d 955

H.G. PERKINS, Plaintiff-Appellant, v. INSURANCE COMPANY OF NORTH AMERICA, Defendant-Appellee.

No. 85-4753.

United States Court of Appeals, Fifth Circuit.

Sept. 12, 1986.

Jim Brantley, Snow & Brantley, Paul Snow, Jackson, Miss., for plaintiff-appellant.

David H. Nutt, Susan Fowler Brown, Jackson, Miss., for defendant-appellee.

Appeal from the United States District Court for the Southern District of Mississippi.

Before GARWOOD and HILL, Circuit Judges, and WILL, ^* District Judge.

GARWOOD, Circuit Judge:

In this Mississippi law diversity case, the district court granted defendant-appellee Insurance Company of North America's (INA) motion for summary judgment, holding that under Miss. Code Ann. Sec. 83-11-101(1) plaintiff-appellant H.G. Perkins, a passenger in his employer's truck who was injured in an accident while both the co-employee uninsured driver and Perkins were acting within the course of their employment, was not entitled to uninsured motorist benefits, despite a provision in the INA insurance policy on the truck issued to Perkins' employer that excluded from liability coverage all worker's compensation-covered injuries to the employer's employees. The district court held that worker's compensation was Perkins' exclusive remedy and dismissed his claim. We affirm.

Facts and Proceedings Below

The facts are undisputed. In February 1985, Perkins, an employee of the Deviney Company, and two co-employees were working at a job site in Hinds County, Mississippi when they were directed to take their employer's dump truck to another job site. Perkins was a passenger in the truck; one of the other two Deviney employees was the driver. While en route, the three employees were involved in an accident in which the truck rolled over one or more times. Only Perkins was injured. Perkins thereafter filed a claim for worker's compensation benefits, and he was paid a lump sum settlement. Perkins' injuries clearly occurred in the course of his employment, a requisite to obtaining worker's compensation benefits. Despite this settlement, Perkins now seeks to recover against INA, his employer's automobile liability insurance carrier, for the injuries he sustained in the accident. As his basis for recovery, Perkins alleges negligence on the part of the driver, his co-employee, who was personally uninsured.

Perkins made demand upon INA for payment of uninsured motorist benefits to which he claimed he was entitled under his employer's INA policy and Mississippi law. The employer had liability insurance with INA in force on the vehicle at the time of the accident, but due to the exclusions contained in the policy the liability insurance was not applicable to Perkins' claim. Thus, Perkins alleged that he was eligible to claim benefits under the uninsured motorist provision of the INA policy, benefits that are required to be provided under Miss. Code Ann. Sec. 83-11-101(1). After Perkins filed suit against INA, his employer, which was self-insured for worker's compensation as authorized by Miss. Code Ann. Sec. 71-3-75, filed a motion to intervene, claiming it was entitled to subrogate the worker's compensation benefits it paid Perkins against any uninsured motorist recovery he might obtain. The district court allowed intervention.

INA moved for summary judgment, claiming that Perkins was barred by the exclusive remedy clause of Mississippi's worker's compensation statute, Miss. Code Ann. Sec. 71-3-9, from recovering against his employer's uninsured motorist carrier. INA also claimed that this exclusivity extends to suits against co-employees. Consequently, INA claimed that Perkins could not recover under the uninsured motorist statute and was relegated solely to the worker's compensation benefits he had received. The parties admitted for purposes of the motion for summary judgment that "the driver/co-employee did not have a personal automobile liability policy in effect." The district court granted INA's motion for summary judgment. This appeal by Perkins follows.

Discussion

Summary judgment is appropriate if the record discloses "that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). Our standard on appeal is the same as that for the district court. 10 C. Wright, A. Miller, & M. Kane, Federal Practice and Procedure, Sec. 2716 at 654 (2d ed. 1983); see also Simon v. United States, 711 F.2d 740, 743 (5th Cir.1983); Miles v. American Telephone & Telegraph, Inc., 703 F.2d 193, 194 (5th Cir.1983). Here the facts are undisputed. We determine whether the district court correctly applied Mississippi law in holding that the uninsured motorist benefits under an employer's automobile insurance policy are not, as a matter of law, available to one of the employer's employees whose injury for which recovery is sought is covered by the Mississippi worker's compensation statute and is caused by the negligence of an uninsured co-employee driving the employer's vehicle in the course of his employment.

Perkins asserts that he was excluded from liability coverage under his employer's INA liability insurance policy on his employer's truck in which he was riding when injured. The policy covers as an insured not only Perkins' employer, Deviney, owner of the truck, but also, with exceptions not here material, those using it with Deviney's permission. The policy further provides with respect to liability coverage:

"This insurance does not apply to:

"....

"2. Any obligation for which the insured or his or her insurer may be held liable under any workers' compensation or disability benefits law or under any similar law.

"....

"4. Bodily injury to any fellow employee of the insured arising out of and in the course of his or her employment.

"5. Bodily injury to any employee of the insured arising out of and in the course of his or her employment by the insured. However, this exclusion does not apply to bodily injury to domestic employees not entitled to workers' compensation benefits."

Perkins asserts that the above-quoted policy provisions excluded from the policy's liability insurance coverage any liability which his employer or his co-employee, the driver, might have to him on account of his injuries sustained in the accident, because it occurred during the course of his and his co-employee's employment and he received worker's compensation benefits in respect to those injuries. Accordingly, Perkins claims that with respect to his injuries in this accident the driver of the vehicle, his co-employee, and its owner, his employer, are each not covered by liability insurance, and that Perkins should therefore be entitled to uninsured motorist benefits, which Mississippi requires all motor vehicle insurers to provide in their insurance policies. See Miss. Code Ann. Sec. 83-11-101(1). Further, Perkins asserts that the Uninsured Motor Vehicle Act, Miss. Code Ann. Sec. 83-11-101 et seq., "is to be liberally construed so as to provide coverage, and exceptions from coverage are to be strictly construed." State Farm Mutual Automobile Insurance Co. v. Nester, 459 So.2d 787, 788 (Miss.1984). The Mississippi Supreme Court in Rampy v. State Farm Mutual Automobile Insurance Co., 278 So.2d 428, 432 (Miss.1973), stated: "In interpreting similar, if not identical statutes, the vast majority of jurisdictions have stated that the purpose of such uninsured motorist laws is to provide protection to innocent insured motorists and passengers injured as a result of the negligence of financially irresponsible drivers." See Hodges v. Canal Insurance Co., 223 So.2d 630 (Miss.1969). Perkins particularly relies on Preferred Risk Mutual Insurance Co. v. Poole, 411 F.Supp. 429 (N.D.Miss.), aff'd per curiam, 539 F.2d 574 (5th Cir.1976), which held that an employee injured in the scope of his employment may recover from his employer's insurance carrier under the uninsured motorist provision of the policy because of a policy exclusion in the liability portion of the policy for injuries caused by a co-employee. Perkins asserts that the Poole decision has been fully accepted by the Mississippi courts. See State Farm Mutual Automobile Insurance Co. v. Nester, 459 So.2d at 791-92.

We reject Perkins' contentions. Under the Mississippi uninsured motorist statute, Perkins is entitled to benefits from INA only if he is legally entitled to recover his damages from the owner or operator of an uninsured vehicle. The Mississippi uninsured motorist statute provides:

"No automobile liability insurance policy or contract shall be issued or delivered after January 1, 1967, unless it contains an endorsement or provisions undertaking to pay the insured all sums which he shall be legally entitled to recover as damages for bodily injury or death from the owner or operator of an uninsured motor vehicle." Miss.Code Ann. Sec. 83-11-101(1) (emphasis added). ¹

The uninsured motorist coverage of INA's policy mirrors Mississippi law in this regard, stating: "We will pay all sums the insured is legally entitled to recover as damages from the owner or driver of an uninsured motor vehicle." (Emphasis added.)

We find that under Mississippi law and the INA insurance policy Perkins was not "legally entitled to recover" from the owner or operator of the INA insured truck any damages for injuries resulting from the accident, and thus he was not entitled to uninsured motorist benefits from INA. In Mississippi, worker's compensation benefits are an employee's exclusive remedy against his employer for injuries sustained in the course of his employment. Section 71-3-9, Miss.Code Ann., entitled "Exclusiveness of Liability," provides that: "The liability of an employer to pay compensation shall be exclusive and in place of all other liability of such employer to the employee...." See also Williams v. Munford, Inc., 683 F.2d 938, 940 (5th Cir.1982), Ray v. Babcock and Wilcox Co., 388 So.2d...