Richmond v. Benchmark Const. Corp.

Decision Date10 April 1997
Docket NumberNo. 94-CA-01008-SCT,94-CA-01008-SCT
PartiesErnest RICHMOND v. BENCHMARK CONSTRUCTION CORP.
CourtMississippi Supreme Court

Lance L. Stevens, Stevens & Ward, Jackson, for appellant.

Roger C. Riddick, Upshaw Williams Biggers Beckham & Riddick, Jackson, for appellee.

Before DAN LEE, C.J., and PITTMAN and MILLS, JJ.

MILLS, Justice, for the Court:

Ernest Richmond appeals a summary judgment entered against him by the Circuit Court of Hinds County.

Richmond worked for United Piping Systems, Inc. (UPS). UPS maintained workers' compensation insurance coverage on all its workers, including Richmond, at all relevant times to this suit. On August 17, 1992, Richmond was injured while working on a renovation project at a Jitney Jungle store located on Highway 80 in Brandon, Mississippi.

UPS had subcontracted to perform plumbing work for the renovation project with the general contractor, Benchmark Construction Company (Benchmark).

Both the President of Benchmark and the President of UPS agreed that a condition of the subcontract was that UPS secure workers' compensation coverage for its employees. However, Benchmark had no written agreement requiring UPS to maintain worker's compensation coverage on the Jitney renovation project. UPS's insurance agent never issued a "Certificate of Insurance" to Benchmark. Nevertheless, UPS maintained workers compensation insurance covering its employees at all times relevant to this case.

Based on the evidence summarized above, both parties moved for summary judgment. Benchmark moved to dismiss the case. Richmond moved for partial summary judgement asking the trial court to dismiss the statutory employer/exclusivity defense. The trial court below granted summary judgment in favor of Benchmark.

STANDARD OF REVIEW

Rule 56(c) of the Mississippi Rules of Civil Procedure allows summary judgment where there are no genuine issues of material fact such that the moving part is entitled to judgment as a matter of law. To prevent summary judgment, the non-moving party must establish a genuine issue of material fact by means allowable under the Rule. Lyle v. Mladinich, 584 So.2d 397, 398 (Miss.1991).

This Court employs a de novo standard of review in reviewing a lower court's grant of summary judgment. Short v. Columbus Rubber & Gasket Co., Inc., 535 So.2d 61, 63 (Miss.1988). Evidentiary matters are viewed in the light most favorable to the non-moving party. Palmer v. Biloxi Regional Medical Center, Inc., 564 So.2d 1346, 1354 (Miss.1990). If any triable issues of fact exist, the lower court's decision to grant summary judgment will be reversed. Otherwise, the decision is affirmed. Brown v. Credit Center, Inc., 444 So.2d 358, 362 (Miss.1984).

In Brown, this Court stated:

When a motion for Summary Judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of his pleadings, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If he does not Id. at 364, quoting Miss. Rule Civ. Proc. 56(e).

so respond, Summary Judgment if appropriate shall be entered against him.

The party opposing the motion must be diligent. Grisham v. John Q. Long V.F.W. Post, 519 So.2d 413, 415 (Miss.1988). The non moving party "remains silent at her peril. For one thing, the non-movant may not rest upon allegations or denials in her pleadings ... Rather, the party opposing the motion must by affidavit or otherwise set forth specific facts showing that there are indeed genuine issues for trial." Fruchter v. Lynch Oil Co., 522 So.2d 195, 198-99 (Miss.1988).

THE LAW

I. Whether the statutory "exclusive remedy" provisions bar the Plaintiff's claim for damages.

Section 71-3-9 of the Mississippi Code, in relevant part, reads:

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.

Miss.Code Ann. § 71-3-9 (1972).

Section 71-3-7, in pertinent part, reads:

Every employer to whom this chapter applies shall be liable for and shall secure the payment to his employees of the compensation payable under its provisions.

In 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 (1972).

In Doubleday v. Boyd Constr. Co., 418 So.2d 823 (Miss.1982), this Court faced an similar situation where the contractor contractually required the subcontractor to obtain workers' compensation insurance. The worker was injured on the job and the subcontractor's insurance carrier paid compensation benefits. Id. at 418. The worker sued the contractor in tort. The Court stated that "the Legislature did not intend to subject a general contractor to common law liability if he complied with § 71-3-7 by requiring the subcontractor to have workers' compensation insurance." Id. at 826.

Initially, Richmond argues that a general oral agreement between Benchmark and UPS is insufficient for the Court to hold Benchmark "secured" payment. We find that such oral agreement is satisfactory under the facts of this case. Had the Legislature sought to require a "written" agreement, it could have so required. Richmond also argues that the agreement was merely alleged. However, Richmond provides the Court with no authority requiring Benchmark to have entered into a job specific written agreement with UPS in order to maintain a defense of exclusivity/statutory employer.

We note that the oral agreement is supported by the undisputed affidavit of Eddie Conger, President of UPS, and the deposition and affidavit of Joseph David Marsh III, President of Benchmark. No proof opposing these facts was offered by the plaintiff. The party opposing the motion must be diligent. Grisham v. John Q. Long V.F.W. Post, 519 So.2d 413, 415 (Miss.1988). The non-moving party

remains silent at her peril. For one thing, the non-movant may not rest upon allegations or denials in her pleadings ... Rather Fruchter v. Lynch Oil Co., 522 So.2d 195, 198-99 (Miss.1988).

the party opposing the motion must by affidavit or otherwise set forth specific facts showing that there are indeed genuine issues for trial.

In the present case, Richmond relies on nothing to disprove the proof that there was a longstanding oral agreement between Benchmark and UPS that UPS would carry workers' compensation insurance as a condition of working as a subcontractor on various Benchmark jobs. Thus, the trial court properly found for Benchmark on this issue.

II. Whether Doubleday v. Boyd Construction Company and its progeny are applicable?

Richmond's next argument is that Benchmark is not the type of contractor afforded the protection of the statutory employer's exclusivity defense as set forth under Doubleday. Richmond argues that he falls in the exception to this defense noted by the cases of Magee v. Transcontinental Gas Pipe Line Corp., 551 So.2d 182 (Miss.1989); Nash v. Damson Oil, 480 So.2d 1095 (Miss.1985); and Falls v. Mississippi Power & Light, 477 So.2d 254 (Miss.1985). In each of these cases, a non-general contractor party who owned property interests on the site where the injury occurred was sued. The Court held in each of these cases that the property owners could not assume the posture of a contractor. Where those defendants had no responsibility under the Workers' Compensation Act, they therefore enjoyed none of the benefits of the act.

The Falls, Damson, and Magee line of cases are inappropriate to Richmond. Benchmark is the contractor of the Jitney renovation contract, not the owner of the property.

III. Whether the Doubleday "statutory employer" doctrine has been abandoned by this Court.

Richmond asks the Court to overrule Doubleday. He relies predominantly on Justice Sullivan's special concurrence in Nash v. Damson Oil. There Justice Sullivan stated: "It is a complete fiction to suggest that the contractor in these cases has 'secured' the payment of compensation to the injured employees of the subcontractors. In each of these cases, the compensation was secured by the subcontractor/employer." Nash v. Damson Oil Corp., 480 So.2d 1095, 1102 (Miss.1985) (Sullivan, J., specially concurring).

Justice Sullivan argued that where the contractor did not in fact "secure" workers' compensation insurance it would be liable in tort for any negligent act on its job site which injured a subcontractor's employee.

This argument is misplaced. The language in Doubleday unfortunately focuses on the verb "secure." The statute in fact reads, "In 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." (Emphasis added.) The emphasis should not be on the verb "secure" but on the relationship between the parties. The statute does not require the contractor to put a condition in a contract. The statute makes the contractor stand in the place of the...

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