Dunavant Enterprises, Inc. et al v. Desoto County School Board of Education et al

Filing 177

ORDER. Signed by Michael P. Mills on 08/31/2011 directing briefing on independent contractor issue. (rmw)

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF MISSISSIPPI
DELTA DIVISION
DUNAVANT ENTERPRISES, INC., and
CENTRAL STATES INVESTMENT CO.
v.

PLAINTIFFS
Case No. 2:08-CV-005-M-A

DESOTO COUNTY SCHOOL BOARD DEFENDANTS/
OF EDUCATION, and MILTON KUYKENDALL,
In his official capacity as Superintendent of the
DEFENDANTS/
DeSoto County School Board of Education
THIRD-PARTY PLAINTIFFS
v.
ALLEN & HOSHALL, INC.,

THIRD-PARTY DEFENDANT
ORDER

This cause comes before the court on its own motion, directing that the parties brief the
issues of whether
1) Allen & Hoshall (“A&H”) acted as an independent contractor in this case; and
2) if so, whether this fact absolves Desoto County of vicarious liability for any
acts of negligence which A&H committed.
Following the dismissal without prejudice of plaintiffs’ claims against A&H for lack of
jurisdiction, the plaintiffs’ sole remaining claims in this federal lawsuit are their Mississippi Tort
Claims Act (“MTCA”) claims against Desoto County. Consistent with the provisions of the
MTCA, this court will serve as the trier of fact in this matter. In preparation for this role, this
court has been taking a closer look at the legal context in which this case will be decided, and it
has developed certain concerns which, in its view, should be addressed by the parties prior to
trial.
1

The parties have submitted their proposed pre-trial order in this case, and that order
contains multiple allegations of negligence against A&H, even though plaintiffs’ claims against
that defendant have been dismissed. For example, the proposed pretrial order includes the
following contested issues:
2.
Whether Allen & Hoshall was guilty of professional negligence in failing
to perform a drainage study taking into consideration full development of the
upstream basin.
3.
Whether Allen & Hoshall comported with the applicable standard of care
in the performance of its design services for the Project.
4.
Whether any actions or inactions on the part of Allen & Hoshall
proximately caused the alleged diminution in value to Plaintiffs'
property.
It appears from the pretrial order that all parties assume that Desoto County might potentially be
held vicariously liable under the MTCA for acts of negligence by A&H.1 While this assumption
may ultimately prove correct, this court is cognizant of the fact that the MTCA provides for
vicarious liability on the part of governmental entities for their employees, but not for
independent contractors.
Indeed, Miss. Code Ann. § 11-46-1(f) provides that the “employee[s]” for whom the
governmental entity might be liable do not include “a person or other legal entity while acting in
the capacity of an independent contractor under contract to the state or a political subdivision.”
The Mississippi Supreme Court has defined an independent contractor as “a person who
contracts with another to do something for him but who is not controlled by the other nor subject
to the other' right to control with respect to his physical conduct in the performance of the
s
1

For example, A&H stipulates in the pretrial order that it will “indemnify and hold the
DeSoto County Board of Education and Milton Kuykendall (collectively the ‘Board Defendants’)
harmless from and against any and all damages and liabilities which the Board Defendants may
sustain as a result of A&H' actual negligence in the performance of its work for the Board
s
Defendants.”
2

undertaking.” Hodges v. Attala County, 42 So.3d 624, 626 (Miss. App. 2010), citing Richardson
v. APAC-Miss., Inc., 631 So.2d 143, 148 (Miss.1994). The pretrial order in this case asserts that
On October 4, 2005, the Board entered into a contract with the engineering firm of
Allen & Hoshall, Inc. (“A&H”) for engineering services in connection with the
planned construction of two schools on the Property and associated road and
bridge construction.
The plaintiffs appear to allege in the pretrial order that A&H utilized its own discretion and
expertise in completing this project, asserting, inter alia, that “[a]s part of its work, A&H
designed, planned and developed Kirk Road, including a bridge spanning a large ditch running
between the Plaintiff' remaining property and the newly purchased property of the School
s
Board.”
A recent Mississippi appellate court decision applied § 11-46-1(f) to bar claims which
bear considerable similarity to those in this case. In the 2010 decision of Hodges v. Attala
County, the Mississippi Court of Appeals considered a case where Attala County contracted with
an independent contractor to construct a road project where the contractor was responsible for
maintaining all traffic barriers and warnings, but there was a supplement to the contract that
provided that the county’s engineer was “designated to insure that the contractor constructs,
installs and maintains the devices called for.” Hodges, 42 So.3d at 626-27. The plaintiff in
Hodges argued that, by agreeing to this contractual language, the county undertook a duty of care
notwithstanding the general rule barring vicarious liability for the negligence of independent
contractors. The Court of Appeals rejected this argument, finding that the supplement to the
contract did not impose a duty on the county in this regard, and it accordingly affirmed the trial
court’s grant of summary judgment to the county. Id.

3

It appears to this court that Hodges bears considerable factual similarity to this case,
which likewise involves alleged acts of negligence by an (apparently) independent contractor in
performing a construction project for a Mississippi county. It may be that Hodges will ultimately
prove distinguishable from this case, but, at this juncture, the court has serious concerns
regarding whether a MTCA action against Desoto County is the proper forum in which to litigate
claims of negligence against Allen & Hoshall. This court is hesitant to raise issues of law on its
own motion, but it views this issue as being a fundamental one of liability under the MTCA
which is in urgent need of clarification before the parties engage in a potentially lengthy and
expensive trial.2 The court therefore directs that the parties submit briefing on the issues raised
in this order, and it further advises them to consider whether an MTCA action in federal court is
the appropriate venue in which to litigate the issues raised in this case.
So ordered, this the 31st day of August, 2011.
/s/ Michael P. Mills
CHIEF JUDGE
U.S. DISTRICT COURT
NORTHERN DISTRICT OF MISSISSIPPI

2

The MTCA generally covers claims arising out of negligence by governmental, not
private, actors. As the trier of fact, this court can simply not render a verdict under the MTCA
arising out of allegations of negligence by a private actor such as A&H absent authority
demonstrating that such is legally permissible.
4