Powe v. Roy Anderson Const. Co., No. 2004-WC-00805-COA.

• Decision Date: 06 September 2005
• Docket Number: No. 2004-WC-00805-COA.
• Citation: 910 So.2d 1197
• Parties: Johnny POWE and Melinda Powe, Appellants, v. ROY ANDERSON CONSTRUCTION COMPANY, Inc., and ADS, L.L.C., Appellees.
• Court: Mississippi Supreme Court

910 So.2d 1197

Johnny POWE and Melinda Powe, Appellants, v. ROY ANDERSON CONSTRUCTION COMPANY, Inc., and ADS, L.L.C., Appellees.

No. 2004-WC-00805-COA.

Court of Appeals of Mississippi.

September 6, 2005.

Austin R. Nimocks, Biloxi, attorney for appellants.

Ben Ellis Sheely, Hattiesburg, Kelly Cash Lee, and Karen Korff Sawyer, Gulfport, attorneys for appellees.

Before LEE, P.J., IRVING and ISHEE, JJ.

LEE, P.J., for the Court.

¶ 1. Johnny Powe was injured in a work-related accident on January 17, 2002. Having received payments through workers' compensation, Powe and his wife filed suit against his employer, ADS, L.L.C. (ADS) and Roy Anderson (Anderson), the contractor who hired ADS. The defendants filed a motion for summary judgment, which the trial court granted. It is from this ruling which the Powes now appeal. Finding that the trial court properly ascertained and applied the law, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. Anderson, a Mississippi corporation, was hired as the general contractor overseeing the expansion of Vaught-Hemming-way Stadium in Oxford, Mississippi. Anderson sub-contracted ADS to perform the project's concrete finishing. ADS is an Alabama corporation with its principal place of business in Alabama. ADS subsequently hired Johnny Powe, a life-long Alabama resident, as a laborer on January 16, 2002.

¶ 3. On January 17, Powe and other ADS employees were pouring concrete for an elevator or stairwell shaft and were lifted to a location between sixty and eighty feet in the air. While they were working, the platform on which Powe and his co-workers were standing collapsed, causing Powe and the other workers to fall to the ground. Powe received a severe injury to his back which required surgery. Powe is now permanently partially disabled.

¶ 4. Powe and his wife filed suit in Hinds County on December 31, 2002. The litigation was subsequently transferred to Harrison County. ADS had workers' compensation insurance under a policy with the Alabama Self-Insured Workers' Compensation Fund. The Fund paid Powe benefits in the amount of $28,181 in addition to paying $96,127 for medical services rendered to Powe. The Fund filed a motion to intervene foregoing recovery against Anderson or ADS; however, the Fund is not a party to the appeal sub judice. Anderson filed a motion for summary judgment, arguing that it should be dismissed as a defendant because the company was immune under Mississippi law. ADS also filed a motion for summary judgment, arguing substantially the same theory. A hearing on the motion was held on October 13, 2003, and on April 1, 2004, the trial court granted both Anderson's and ADS's motions.

¶ 5. The Powes now appeal this ruling, arguing that the summary judgment was improper because of the following four points of error: (1) because this is a breach of contract action, Alabama law should apply; (2) under Alabama law, Anderson is not entitled to immunity; (3) under Alabama law ADS is not entitled to immunity; and (4) the motions for summary judgment were premature because Powe did not have adequate time for discovery on outstanding fact issues.

STANDARD OF REVIEW

¶ 6. "This Court applies a de novo standard of review to a grant of summary judgment by the lower court. The evidence must be viewed in the light most favorable to the party against whom the motion has been made." Hudson v. Courtesy Motors, Inc., 794 So.2d 999, 1002 (¶ 7) (Miss.2001) (quoting Russell v. Orr, 700 So.2d 619, 622 (¶ 8) (Miss.1997)).

APPLICABLE LAW

¶ 7. The Mississippi Workers' Compensation Act provides that "[i]n the case of an employer who is a subcontractor, the contractor shall be liable for and shall secure the payment of such compensation to employees of the subcontractor, unless the subcontractor has secured such payment." Miss.Code Ann. § 71-3-7 (Rev.2000). The law further states 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, his legal representative, husband or wife... and anyone otherwise entitled to recover damages at common law or otherwise from such employer on account of such injury or death[.]

Miss.Code Ann. Section 71-3-9 (Rev.2000). To avoid the exclusivity of the Workers' Compensation Act, the supreme court has set out the two elements that must be met:

(1) the injury must be caused by the willful act of the employer or another employee acting in the course of employment and in the furtherance of the employer's business, and

(2) the injury must be one that is not compensable under the act.

Peaster v. David New Drilling Co., Inc., 642 So.2d 344, 346 (Miss.1994) (citing Griffin v. Futorian Corp., 533 So.2d 461, 463 (Miss.1988), citing Miller v. McRae's Inc., 444 So.2d 368, 371-72 (Miss.1984)).

¶ 8. Additionally, although an injured party has made a claim against an employer or has accepted workers' compensation benefits, an injured party may bring a negligence action against "any other party" under Mississippi Code Annotated § 71-3-71 (Rev.2000). Our supreme court has determined that "where the subcontractor provided compensation coverage to its employees pursuant to its contract with the prime contractor, the prime contractor qualified as a statutory employer and was immune from a common law tort suit by the injured employee." Salyer v. Mason Technologies, Inc., 690 So.2d 1183, 1184 (Miss.1997) (citing Doubleday v. Boyd Constr. Co., 418 So.2d 823, 826-27 (Miss.1982)). Accordingly, in Mississippi, when a subcontractor has secured coverage for its employees, the immunity afforded by workers' compensation extends to the general contractor.

¶ 9. This position is consistent with the policy behind Mississippi's workers' compensation legislation. "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." McCluskey v. Thompson, 363 So.2d 256, 259 (Miss.1978) (reversed on other grounds). It is well-settled law in Mississippi that this immunity extends not only to employers, but also to employees and officers or agents acting in the course and scope of their employment. Brown v. Estess, 374 So.2d 241, 242-43 (Miss.1979). "It is this Court's opinion that the purpose, spirit and philosophy of the Workmen's Compensation Act is to make compensation the exclusive remedy of the employee where he is injured by the employer or any of its employees during the course of his employment." Id.

¶ 10. Alabama's workers' compensation law also contains an exclusive remedy provision.

The rights and remedies granted in this chapter to an employee shall exclude all other rights and remedies of the employee, his or her personal representative, parent, dependent, or next of kin, at common law, by statute, or otherwise on account of injury, loss of services, or death. Except as provided in this chapter, no employer shall be held civilly liable for personal injury to or death of the employer's employee, for purposes of this chapter, whose injury or death is due to an accident or to an occupational disease while engaged in the service or business of the employer, the cause of which accident or occupational disease originates in the employment. In addition, immunity from civil liability for all causes of action except those based upon willful conduct shall also extend to the workers' compensation insurance carrier of the employer....

Ala.Code Section 25-5-53 (1975). However, unlike Mississippi, Alabama's supreme court has held that an employee who has suffered a work-related injury may sue the general contractor in tort. See, e.g., Jones v. Crawford, 361 So.2d 518 (Ala.1978) (allowing suit by subcontractor's employee against prime contractor for failure to provide safe work environment); Kilgore v. C.G. Canter, Jr. & Associates, Inc., 396 So.2d 60 (Ala.1981).

¶ 11. In Kilgore, Kilgore was employed by Morrison Electric Company, which was a subcontractor on a construction project of C.G. Canter, Jr. & Associates, Inc., the owner and general contractor. While working for Morrison in the construction of a house owned by Canter, Kilgore was injured when heavy sheetrock fell on his leg. Kilgore sued Canter, claiming that Canter failed to maintain a safe place in which to work and that Canter was negligent in stacking and maintaining the sheetrock in a dangerous and unsafe condition. Canter sought summary judgment, arguing that it could not be sued because Kilgore had already received workman's compensation. Finding that the trial court improperly granted summary judgment in favor of Canter, the Alabama supreme court opined:

The Alabama Workmen's Compensation Act makes it clear that it is an exclusive remedy only in situations where an employee is suing his employer for injury in the course of his employment. See, Ala.Code 1975, §§ 25-5-51, -53; Owens v. Ward, 49 Ala.App. 293, 271 So.2d 251 (1972). In order to come within the terms of the Act, and therefore, have liability limited to the benefits paid thereunder, it is essential that the person seeking to limit the remedy of the injured party be in an employer-employee relationship with that party.

Kilgore, 396 So.2d at 63. Thus, unlike Mississippi law, Alabama's workers' compensation legislation does not extend immunity to general contractors if the general contractor is not the injured party's employer.

¶ 12. Faced with conflicting provision of immunity, we must next decide whether to apply the substantive law of Mississippi or Alabama.

¶ 13. Since Craig v. Columbus Compress & Warehouse Co., 210 So.2d 645, 649 (Miss.1968) and Mitchell v. Craft, 211 So.2d 509 (Miss.1968), when deciding conflict of law questions, Mississippi has ascribed to the most significant relationship test embodied in the Restatement (Second) of Conflicts...