Amanda Thornton v. W. E. Blain & Sons, Inc.
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IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2003-CA-00244-COA
AMANDA THORNTON, A MINOR, BY AND
THROUGH HER NEXT FRIEND, FOR AND ON
BEHALF OF HERSELF AND ALL OTHERS
ENTITLED TO RECOVER FOR THE WRONGFUL
DEATH OF DAVID PATRICK THORNTON AND ON
BEHALF OF OTHER INTERESTED PARTIES
v.
W. E. BLAIN & SONS, INC., A MISSISSIPPI
CORPORATION
DATE OF TRIAL COURT JUDGMENT:
TRIAL JUDGE:
COURT FROM WHICH APPEALED:
ATTORNEYS FOR APPELLANTS:
ATTORNEYS FOR APPELLEE:
NATURE OF THE CASE:
TRIAL COURT DISPOSITION:
DISPOSITION:
MOTION FOR REHEARING FILED:
CERTIORARI FILED:
MANDATE ISSUED:
APPELLANTS
APPELLEE
1/24/2003
HON. ROBERT G. EVANS
COVINGTON COUNTY CIRCUIT COURT
BRETT WOODS ROBINSON
CHRISTOPHER BRIAN MCDANIEL
J. ROBERT SULLIVAN
JAMES ROBERT SULLIVAN
JOHN DAVID PRICE
GRETCHEN W. KIMBLE
CIVIL - WORKERS’ COMPENSATION
CIRCUIT COURT GRANTED DEFENDANT’S
MOTION FOR SUMMARY JUDGMENT.
AFFIRMED - 07/27/2004
BEFORE KING, C.J., BRIDGES, P.J., AND CHANDLER, J.
CHANDLER, J., FOR THE COURT:
¶1.
This appeal arises from an order of the Covington County Circuit Court granting summary judgment
to W.E. Blain & Sons, Inc., a general contractor, in a wrongful death action. David Patrick Thornton, an
employee of Magco, Inc., which had subcontracted with Blain for the milling work on a highway project,
was crushed to death when the construction equipment on which he was riding was struck by a backhoe
owned by Blain and operated by a Blain employee. Thornton’s heirs assert that the circuit court erred in
granting Blain’s motion for summary judgment based on the exclusivity provision of the Mississippi
Workers’ Compensation Act. We decline to adopt the Thorntons’ construction of the workers’
compensation statutes and affirm the decision of the circuit court.
FACTS
¶2.
W.E. Blain & Sons, Inc., a Mississippi corporation domiciled in Covington County, entered into
a prime contract with the Mississippi Department of Transportation to widen and re-pave a section of
Highway 84 in Franklin County, Mississippi. On February 4, 2002, Blain entered into a subcontract with
Magco, Inc. to mill the old asphalt from the roadway. The contract between Blain and Magco required
Magco to carry workers’ compensation insurance for its employees. Magco provided Blain with a
certificate of liability insurance, indicating that the requisite coverage was in effect prior to the contract date.
¶3.
On April 10, 2002, David Thornton, a Magco employee, was riding on a Broce Broom Sweeper,
operated by a Blain employee, at the Highway 84 construction site. The machine was sideswiped by a
Caterpillar backhoe, owned by Blain and driven by a Blain employee. Thornton was thrown from the
broom sweeper by the impact and crushed. The backhoe operator had attempted to reverse his machinery
“due to no brakes,” but the backhoe “went dead” and veered into the broom sweeper. Blain subsequently
was cited and fined by the Occupational Safety and Health Administration of the United States Department
of Labor (OSHA) for a willful violation of its requirement that all earthmoving equipment have a braking
system capable of stopping and holding the equipment when fully loaded. The OSHA report further found
that neither the backhoe nor the broom sweeper was equipped with operational horns and the backhoe
did not have a back-up warning signal device.
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¶4.
A wrongful death action was filed on behalf of Thornton’s minor daughter and other relatives on
April 24, 2002, in the Circuit Court of Jones County. Blain’s motion to transfer venue was granted and
the case was transferred to Covington County. Blain filed a motion for summary judgment on November
12, 2002. Finding that there were no genuine issues of material fact and that
Blain, as a prime contractor, was afforded tort immunity by the Mississippi Workers’ Compensation Law,
the circuit court granted summary judgment for Blaine by order dated January 24, 2003.
LAW AND ANALYSIS
I. WHETHER THE CIRCUIT COURT ERRED IN GRANTING BLAIN’S MOTION
FOR SUMMARY JUDGMENT
¶5.
At issue in the circuit court as well as on appeal is whether Blain, as the primary contractor, was
Thornton’s statutory employer, thus immunizing it from tort liability, or whether it is “an other party” subject
to a third-party action against it. In granting Blain’s motion for summary judgment, the circuit court found
that there were no issues of material fact and as a matter of law, the case was controlled by the Mississippi
Supreme Court’s decision in Salyer v. Mason Technologies, Inc., 690 So. 2d 1183 (Miss. 1997). The
circuit court further declined to adopt Thornton’s proposed “substantial certainty” exception to the
exclusivity provision of the Mississippi Workers’ Compensation Law, stating that the Legislature “would
be the proper body to effect a change.” Aggrieved by the circuit court’s decision, Thornton asserts that
the circuit court erred in granting Blain’s motion for summary judgment, arguing that the law unfairly limits
the right of an injured party to recover from the party actually responsible for the injury.
¶6.
The Mississippi Workers’ Compensation Law 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.
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§ 71-3-7 (Rev. 2000). The exclusivity provision of the Law further states that “[t]he liability of an employer
to pay compensation shall be exclusive and in place of all other liability of such employer to the employee
. . .” Miss. Code Ann. § 71-3-9 (Rev. 2000). Construing these statutes together, the Mississippi Supreme
Court reiterated in Salyer the well-established principle 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, 690 So. 2d at 1184 (citing Doubleday v. Boyd Constr. Co., 418 So. 2d 823, 826-27
(Miss. 1982)). However, making a claim against an employer or accepting workers’ compensation benefits
therefrom does not preclude the injured party from bringing a negligence action against “any other party.”
Miss. Code Ann. § 71-3-71 (Rev. 2000).
¶7.
In Doubleday, as in the case sub judice, Boyd Construction Company was the prime contractor
on a road construction project for the Mississippi Highway Department. Doubleday, 418 So. 2d at 824.
The injured worker, David Doubleday, was employed by W.T. Ratliff Co., Inc., which had subcontracted
with Boyd to perform some of the construction work. Id. The contract between Boyd and Ratliff, like the
contract between Blain and Magco, required that the subcontractor carry workers’ compensation insurance
for its employees. Id. Ratliff’s insurer paid benefits to Doubleday for his injuries. Id. Doubleday, however,
brought suit against Boyd, alleging that the general contractor negligently failed to provide proper warning
to traffic approaching the construction site, which caused him to be hit by a car. Id. The circuit court found
that Boyd, as the prime contractor, was the statutory employer of Ratliff’s employees and not “any other
party.” Thus, workers’ compensation was his exclusive remedy. Id. The Mississippi Supreme Court
agreed. Id. at 827.
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¶8.
The contract between Blain and Magco required the subcontractor to carry workers’ compensation
insurance for its employees. Thornton, therefore, argues that Blain should not be able to enjoy the immunity
afforded a statutory employer because it did not “secure” compensation since Magco, in compliance with
its statutory obligations under § 71-3-7, had carried workers’ compensation insurance for its employees
for many years prior to subcontracting with Blain. The same argument was raised and rejected in Salyer.
Turning again to Doubleday, the court stated:
[W]e see no reason to draw a distinction between prime contractors who contractually
require subcontractors to provide compensation coverage on one hand, and prime
contractors who hire subcontractors who already provide compensation coverage on the
other hand. We believe the legislative intent of the workers' compensation statutes would
not be effectuated based upon such a superficial, technical distinction. Rather, "[a] sounder
result would seem to be the holding that the overall responsibility of the general contractor
for getting subcontractors insured, and his latent liability for compensation if he does not,
should be sufficient to remove him from the category of 'third party.'"Doubleday, 418 So.
2d at 826 (quoting Larson, Workmen's Compensation Law, § 72.31(b) (1982)). We find
that hiring subcontractors who comply with the act by providing compensation coverage
to its employees satisfies this "overall responsibility."
Salyer, 690 So. 2d at 1185 (emphasis in original).
¶9.
Thornton cites Nash v. Damson Oil Corp., 480 So. 2d 1095 (Miss. 1985) and Falls v.
Mississippi Power & Light Co., 477 So. 2d 254 (Miss. 1985) for the proposition that a contractor could
not gain tort immunity simply “by voluntarily electing to say it had compensation obligations which in fact
and law it did not have.” Nash, 480 So. 2d at 1100. Thornton’s reliance is misplaced.
In those cases, Damson Oil and Mississippi Power & Light, by virtue of their interest, use and activities with
respect to the premises were found to be outside the meaning of “general contractor” or “prime contractor”
as contemplated by § 71-3-7 and Doubleday. Nash, 480 So. 2d at 1100; Falls, 477 So. 2d at 258.
Damson Oil was the lessee of an oil producing unit, which had contracted with Nash’s employer, Trigger
Contractors, to periodically perform work on its oil and gas wells. Nash, 480 So. 2d at 1096. Similarly,
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Mississippi Power and Light held a permit for land along the Natchez Trace and had contracted with the
Deviney Company, for whom Falls worked, to keep its right-of-way clear of brush and trees. Falls, 477
So. 2d at 255-56. However, Blain, like Boyd, “occupied the position persons of common understanding
would label general or prime contractor.” Nash, 480 So. 2d at 1100.
¶10.
This Court conducts a de novo review of the lower court’s grant or denial of summary judgment.
Lewallen v. Slawson, 822 So. 2d 236, 237 (¶ 6)(Miss. 2002); Daniels v. GNB, Inc., 629 So. 2d 595,
599 (Miss. 1993). A trial court may grant summary judgment "if the pleadings, depositions, answers to
interrogatories and admissions on file, together with the affidavits, if any, show 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." There are
no genuine issues of material fact in the present. The circuit judge correctly found that Blain, as a general
or prime contractor, was Thornton’s statutory employer, and not “any other party” subject to a negligence
action pursuant to § 71-3-71. As a matter of law, therefore, Blain was entitled to summary judgment.
II.
WHETHER MISSISSIPPI SHOULD ADOPT THE “SUBSTANTIAL
CERTAINTY” STANDARD AS AN EXCEPTION TO THE EXCLUSIVITY
PROVISION OF THE WORKERS’ COMPENSATION ACT
¶11.
Thornton also urges this Court to adopt the “substantial certainty” standard, which allows an injured
worker to circumvent the exclusivity provision of the Workers’ Compensation Law in those instances
where the employer engages in misconduct knowing that death or serious injury is “substantially certain to
occur.” Woodson v. Rowland, 407 S.E.2d 222, 228 (N.C. 1991). As Blain points out, the Mississippi
Supreme Court already has declined to create a “substantial certainty” exception to the exclusivity provision
of the Act, stating:
There is nothing novel about the approach suggested by the appellants of enlarging the
scope of the exemption test. We have stated consistently our position on this issue. The
legislature has had every opportunity to include into the Act such a liberal exception
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suggested by the appellants, yet failed to do so. If this Court were to include what the
legislature did not, we would violate the "purpose, spirit and
philosophy of the Workmen's Compensation Act."
Peaster v. David New Drilling Co., Inc., 642 So. 2d 344, 349 (Miss. 1994) (quoting Brown v. Estess,
374 So. 2d 241, 242 (Miss. 1979)).
¶12.
Despite the unfortunate circumstances of Thornton’s death, this Court is bound to follow the
dictates of the Mississippi Workers’ Compensation Law. Blain was entitled to summary judgment as a
matter of law. Accordingly, we affirm the judgment of the circuit court.
¶13. THE JUDGMENT OF THE COVINGTON COUNTY CIRCUIT COURT IS
AFFIRMED. COSTS OF THIS APPEAL ARE TAXED TO THE APPELLANTS.
KING, C.J., BRIDGES AND SOUTHWICK, P.JJ., LEE, IRVING, MYERS AND
GRIFFIS, JJ., CONCUR.
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