Taylor v. Rogers Group, Inc. et al
MEMORANDUM OPINION re 74 Order on Motion for Summary Judgment. Signed by Magistrate Judge S. Allan Alexander on 10/31/14. (jtm)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF MISSISSIPPI
CIVIL ACTION NO. 3:13CV150-SAA
ROGERS GROUP, INC.
This case is before the undersigned on the defendant’s motion for summary judgment.
The motion is fully briefed and ready for review.
FACTUAL, PROCEDURAL AND JURISDICTIONAL BACKGROUND
Plaintiff Peter Taylor is a resident of Farmington, New York. Defendant Rogers Group,
Inc. [RGI], an Indiana corporation with its principal place of business in Tennessee, is authorized
to do business in the State of Mississippi.1 Taylor filed this action against RGI in the Circuit
Court of Marshall County, Mississippi on May 17, 2013, seeking damages for injuries he
sustained in an accident caused by the negligence of one of RGI’s employees during road
construction in Marshall County, Mississippi. Docket 3. Defendant removed the action to this
court on June 6, 2013. Docket 1. The court has jurisdiction of this action under 42 U.S.C. §
1332 as there is complete diversity between the parties, and the amount in controversy exceeds
Defendant RGI is in good standing with the Mississippi Secretary of State’s office and
its registered agent for service of process is located in Flowood, Mississippi.
In accordance with the provisions of 28 U.S.C. § 636 (c), both parties consented to have
a United States Magistrate Judge conduct all proceedings in this case, including an order for
The facts of this case are generally agreed. See Docket 43. As summarized from the
statement of undisputed facts (Docket 43), defendant RGI was the prime contractor for road
construction work to be performed for the Mississippi Department of Transportation (“MDOT”)
on U.S. Highway 78 in Marshall County. RGI subcontracted with Villager Construction, Inc.,
plaintiff’s employer, to remove pavement on the highway. The contract between RGI and
Villager required Villager to “acquire, pay for and thereafter maintain policies of insurance,”
including workers’ compensation insurance for its employees working at the project. Villager
maintained coverage through ABC Compensation Trust.
Rogers was injured at the project on April 30, 3012, while he was standing on the
shoulder of the west bound lane of Highway 78 helping remove asphalt for Villager when a
cluster of barrels fell off a passing truck driven by RGI’s employee, hit him from behind and
caused him to fall onto the pavement. On May 7, 2012, plaintiff submitted a claim to Villager’s
workers’ compensation carrier for the injuries he sustained, and Villager’s carrier compensated
plaintiff, paying him temporary total disability benefits, permanent partial disability benefits and
all of his medical bills.
RGI filed a motion for summary judgment on March 25, 2014, arguing that plaintiff’s
claims are barred by the exclusive remedy provision of the Mississippi Workers’ Compensation
Act, MISS. CODE ANN. §71-3-1, et seq. Docket 42. A little over a week after it filed the
summary judgment motion, RGI filed a motion for leave to amend its answer to include the
exclusive remedy provision as an affirmative defense. Docket 48. The court allowed the
amendment on June 10, 2014, and RGI filed its First Amended Answer to include as a defense
entry of a final judgment.
the exclusive remedy provision of the Mississippi Workers’ Act. Docket 62 & 63. The specific
defense added is as follows:
Plaintiff’s claims against RGI are barred because Plaintiff, as a statutory
employee of RGI under the Mississippi Workers’ Compensation Act in
connection with the project at issue, could only pursue a remedy against RGI for
his alleged injuries under the Mississippi Workers’ Compensation Act.
MISS.CODE ANN. §§71-3-7.
Docket 63, p. 6. On July 28, 2014 the court denied plaintiff’s Motion to Strike Waived and
Untimely Defenses. Docket 67. The parties now have fully briefed the motion for summary
judgment, and after detailed review of the record in this case, applicable rules and case law, the
court finds that the defendant’s motion should be granted.
STANDARD OF REVIEW
A party is entitled to 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 judgment as a matter
of law.” FED. R. CIV. P. 56(c). On a motion for summary judgment, the movant has the initial
burden of showing the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477
U.S. 317, 325 (1986). If the movant makes this showing, the burden then shifts to the nonmovant to “go beyond the pleadings and by . . . affidavits, or by the ‘depositions, answers to
interrogatories, and admissions on file,’ designate ‘specific facts showing that there is a genuine
issue for trial.’” Id. at 324, quoting FED. R. CIV. P. 56(c), (e). Before finding that no genuine
issue for trial exists, the court must first be satisfied that no rational trier of fact could find for the
non-movant. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
“[T]he issue of fact must be ‘genuine.’ When the moving party has carried its burden
under Rule 56(c), its opponent must do more than simply show that there is some metaphysical
doubt as to the material facts.” Id. at 586; see also Kovacic v. Villarreal, 628 F.3d 209 (5th Cir.
2010). “Conclusory statements, speculation, and unsubstantiated assertions cannot defeat a
motion for summary judgment.” RSR Corp. v. International Ins. Co., 612 F.3d 851, 857 (5th Cir.
2010). Where a party opposes summary judgment on a claim or defense on which that party will
bear the burden of proof at trial, and when the moving party can show a complete failure of proof
on an essential element of the claim or defense, then all other issues become immaterial, and the
moving party is entitled to judgment as a matter of law.” Celotex Corp. v. Catrett, 477 U.S. 317,
322 (1986). Further, self-serving “affidavit or deposition testimony setting forth ultimate or
conclusory facts and conclusions of law are insufficient to defeat a motion for summary
judgment.” Clark v. America’s Favorite Chicken Co., 110 F.3d 295, 297 (5th Cir. 1997); see also
Jackson v. Cal-Western Packaging Corp., 602 F.3d 374 (5th Cir. 2010).
The court must render summary judgment in favor of the moving party if “there is no
legally sufficient evidentiary basis for a reasonable jury to find for that party on that issue.”
Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 135 (2000). The Supreme Court
has cautioned, however, that the ruling court must not encroach upon the functions of the jury.
As the Court stated in Reeves,
. . . the court must review all of the evidence in the record, drawing all reasonable
inferences in favor of the nonmoving party, but making no credibility
determinations or weighing any evidence. The latter functions, along with the
drawing of legitimate inferences from the facts, are for the jury, not the court.
Thus, although the court should review the record as a whole, it must disregard all
evidence favorable to the moving party that the jury is not required to believe.
Id. (citations omitted). “Summary judgment, although a useful device, must be employed
cautiously because it is a final adjudication on the merits.” Jackson v. Cain, 864 F.2d 1235,
1241 (5th Cir. 1989).
The sole issue raised by RGI in its motion for summary judgment is the applicability of
the exclusive remedy provision of the Mississippi Workers’ Compensation Act as a bar to
plaintiff’s claims. The law of this case is that Rogers has pled an affirmative defense that
includes the statutory bar to plaintiff’s claims against defendant under Mississippi Code
Annotated §71-3-7. Rogers argues that New York law, rather than Mississippi law applies to
this case, and in the alternative, if the court concludes that Mississippi law is applicable, the
court should decline to follow Doubleday v. Boyd Construction Co., 418 So.2d 823 (Miss. 1982)
and its progeny as these decisions are in derogation of the plain language and intent of the
Mississippi Workers’ Compensation Act.3 Docket 52. The court will address these arguments
Choice of Law
A federal court sitting in diversity must apply the choice-of-law rules of the state in
which it sits. Day & Zimmermann, Inc. v. Challoner, 423 U.S. 3, 4–5, 96 S.Ct. 167, 46 L.Ed.2d
3 (1975) (per curiam); Ellis v. Trustmark Builders, Inc., 625 F.3d 222, 225 (5th Cir.2010); see
also Erie R.R. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938). This diversity case
was removed from the Circuit Court of Marshall County, Mississippi. It is undisputed that
In his response to the motion for summary judgment, Rogers also argues that RGI’s
failure to plead the exclusive remedy provision in its answer, compounded by its sustained active
participation in this litigation without raising the defense, resulted in waiver of the affirmative
defense of statutory immunity under the Mississippi Workers’ Compensation Act. The court
overruled this argument. See Docket 67.
Mississippi’s choice-of-law rules apply. Williams v. Liberty Mut. Ins. Co., 741 F.3d 617, 620
(5th Cir. 2014). In this case, Rogers argues that his right to bring suit against RGI, as the general
contractor on the construction project, grows out of the contractual relationship between RGI and
Villager, and therefore this court should use the choice of law analysis for claims sounding in
contract rather than in tort. Docket 68.
Despite plaintiff’s rather tenuous and convoluted arguments to this effect,4 the word
“contract” does not even appear in the complaint. Docket 3. The only claim articulated against
RGI in the plaintiff’s complaint is specifically entitled, “CAUSE OF ACTION NEGLIGENCE” [Docket 3, p. 2], and after review the court finds that there is no doubt that his
claim sounds in tort, and is not contractual. See Powe, 910 So.2d at 1204. Finding that
plaintiff’s claims are tort claims, the court must apply the factors outlined in §145 of the
Restatement (Second) of Conflicts of Laws (1971):
(1) The rights and liabilities of the parties with respect to an issue in tort are
determined by the local law of the state which, with respect to that issue, has the
most significant relationship to the occurrence and the parties under the principles
stated in § 6.5
See Plaintiff’s responses to the motion for summary judgment and supporting
memoranda [Docket 51, 52 & 68].
Section 6 of the Restatement, “Choice of Law Principles” directs the court to use the
following factors in determining which laws apply:
(1) A court, subject to constitutional restrictions, will follow a statutory directive
of its own state on choice of law.
(2) When there is no such directive, the factors relevant to the choice of the applicable
rule of law include
(a) the needs of the interstate and international systems,
(b) the relevant policies of the forum,
(c) the relevant policies of other interested states and the relative interests of those
states in the determination of the particular issue,
(d) the protection of justified expectations,
(2) Contacts to be taken into account in applying the principles of § 6 to determine the
law applicable to an issue include:
(a) the place where the injury occurred,
(b) the place where the conduct causing the injury occurred,
(c) the domicile, residence, nationality, place of incorporation and place of
business of the parties, and
(d) the place where the relationship, if any, between the parties is centered.
These contacts are to be evaluated according to their relative importance with respect to
the particular issue.
See Powe at 1201; see also 1 Mississippi Practice Civil Procedure §4:9 (2014).
In Mississippi, courts employ a choice of law analysis only when there is a true conflict
between the laws of two states, each having an interest in the litigation. Zurich American Ins.
Co. v. Goodwin, 920 So. 2d 427, 432 (Miss. 2006), citing Boardman v. United Services
Automobile Ass'n, 470 So.2d 1024, 1038 (Miss.1985). Rogers argues that his right to pursue a
remedy against general contractor RGI is “unconditional” under New York workers’
compensation laws. See Chasnoff v. Port Authority of New York, 131 Misc. 2d 233, 499
N.Y.S.2d 338 (Sup. Ct. 1986) (actions against owner of premises and general contractor were not
barred by workers’ compensation law). Under New York Workers’ Compensation laws, there is
also an exclusive remedy provision that prohibits an employee from suing his employer or a
fellow employee for an accidental injury which arose out of and in the course of the
employment. See N.Y. Jur. Workers’ Comp. Law §§ 11 and 29. However, if the injury or death
is caused by someone else – a third person, including a general contractor where plaintiff is
employed by a subcontractor – even though it happened under circumstances which entitle the
(e) the basic policies underlying the particular field of law,
(f) certainty, predictability and uniformity of result, and
(g) ease in the determination and application of the law to be applied.
employee to workers’ compensation, there is also a right to sue that third person for the
negligence or tort. See Shutter v. Phillips Display Components Co. 90 N.Y.2d. 703 (N.Y. Ct.
Under § 71-3-7 of the Mississippi Workers’ Compensation Act, “[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.” 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. § 71–3–9 (2014). The Mississippi Supreme Court has set out the two elements
that must be met to avoid the exclusivity of the Act: (1) the injury must have been 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
Miller v. McRae’s Inc., 444 So.2d 368, 371–72 (Miss.1984). Additionally, even if an injured
party has made a claim against an employer or has accepted workers’ compensation benefits, he
or she nevertheless may bring a negligence action against “any other party” under Mississippi
Code Annotated § 71–3–71 (Rev. 2000). Although this provision appears to have the same
effect as the New York workers’ compensation statute, the Mississippi 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, 418 So.2d at
826–27 (Miss.1982). Accordingly, in Mississippi, when a subcontractor has secured and
maintained coverage for its employees, the immunity afforded by workers' compensation extends
to the general contractor. Powe v. Roy Anderson Construction Co., 910 So. 2d 1197, 1199-200
(Miss. Ct. App. 2005).
As there is a clear conflict between the laws of New York and the laws of Mississippi,
the court must apply the most “significant relationship” test, often referred to as the “center of
gravity” test, as set out in the Restatement (Second) of Conflicts of Laws on pages 6-7, supra.
McDaniel v. Ritter, 556 So.2d 303, 310 (Miss.1989); Church v. Massey, 697 So.2d 407, 410
(Miss.1997). The test focuses on the contacts between the forum and the parties to a case. Ford
v. State Farm Ins. Co., 625 So.2d 792, 794 (Miss.1993). Applying that analysis to the facts of
this case, the court first finds that there is no statutory directive regarding choice of law, and the
relevant factors tip the balance in favor of applying Mississippi law: RGI [prime contractor] and
Villager [subcontractor/plaintiff’s employer] are both foreign corporations in good standing with
the Mississippi Secretary of State’s office and both have registered agents in Flowood,
Mississippi; the contract between Villager and RGI explicitly states that it “is to be construed as
a Mississippi contract, and shall be governed by the law of that state” [Docket 41-1, ¶32]; the
construction project that was the site of the accident was a project for the Mississippi
Department of Transportation; the accident occurred in Mississippi; plaintiff received medical
treatment in Mississippi and some of his treating physicians are in Mississippi; the place where
the parties’ relationship is centered – i.e., work by Rogers for Villager and RGI on the
construction project – is in Mississippi; and finally, plaintiff filed suit in Mississippi. The sole
fact that weighs against application of Mississippi Law and in favor of New York law, as urged
by plaintiff, is that plaintiff is a resident of the state of New York. That fact alone is not
sufficient to warrant application of New York laws. Powe 910 So.2d at 1204.
Application of Mississippi Law
Next plaintiff argues that even if Mississippi law applies to this case, under the plain
language of §71-3-7, defendant is not plaintiff’s “statutory employer” and thus not immune from
suit under the statutory immunity provided by the Mississippi Workers’ Compensation Act.
Docket 52. Plaintiff argues that Mississippi court decisions in Doubleday and its progeny are a
clear derogation of the plain language of the statute; under the statute, the argument goes, a
contractor such as RGI is not immune from suit because immunity is intended to be afforded
only to the statutory employer [Villager, under plaintiff’s argument] and not a third party [RGI]
that has no direct connection to the injured employee other than to cause his injury.
In Mississippi, statutory immunity from a tort claim developed over time from Mosley v.
Jones, 224 Miss. 725, 80 So. 2d 819 (1955) (defendant was immune from suit as a statutory
employer with actual liability), to Jones v. James Reeves Contractors, Inc., 701 So. 2d 774
(Miss. 1997) (defendant was not immune, enterprise immunity was not allowed and the strict
immunity tests of Clark v. Luther McGill, Inc., 240 Miss. 509, 127 So. 2d 858 (1961) and later
cases were reaffirmed). However, in 1982 the Mississippi Supreme Court decided Doubleday,
the case which Rogers challenges here today, and expanded the tort immunity granted to
employers to prime contractors where the prime assured that its subcontractor had obtained
workers’ compensation coverage for the subcontractor’s employees. Doubleday v. Boyd
Construction Co., 418 So. 2d 823 (Miss. 1982). Miss. Workers’ Compensation Law § 11:3,
Judicial Extension of Tort Immunity, by John R. Bradley, and Linda A. Thompson. This
expansion of the statutory immunity provision, surely does, as plaintiff argues, undermine the
intent of the statute and both generously and judicially enlarge the umbrella of immunity to the
contractor who had no actual liability for benefits under the Act even though its conduct (or that
of its employer) caused the injury to plaintiff. Yet the majority of the Mississippi Supreme
Court has refused to overturn Doubleday. In Nash v. Damson Oil Corporation, 480 So.2d 1095
(Miss. 1985), three justices offered a long concurring opinion advocating that Doubleday be
overturned, and another four justices urged the same decision in another concurrence. These
discussions noted the multiple arguments regarding the logic and illogic of granting a prime
contractor the benefit of the exclusive remedy provision of the Workers’ Compensation Law
when it has contractually required its subcontractor to provide insurance for employees rather
than securing the insurance itself. Despite these vigorous discussions, Doubleday and the
exclusive remedy provision remain viable. Nash v. Damson Oil Corporation, 480 So.2d 1095,
1101-1104 (Miss. 1985). It is not the province of this federal court to decline to follow wellestablished state law articulated by a state’s supreme court in interpreting that state’s statutes
simply because this court may not agree that the interpretation is unwise or unfair.
The court is guided by the Mississippi Court of Appeals decision in Powe v. Anderson
Construction Co., Inc., supra. Powe, a resident of Alabama, was injured in a work-related
accident at Vaught Hemingway Stadium in Oxford, Mississippi. Powe, 910 So.2d at 1199.
Powe’s employer, ADS LLC, was an Alabama company hired by Anderson Construction Co.,
Inc., the prime contractor in the project, to do the concrete finishing work on the stadium
expansion project. Id. While pouring concrete for an elevator shaft or stairwell, Powe fell and
was injured resulting in a permanent partial disability. Powe, received benefits for his injury and
medical bills through a workers’ compensation insurance policy provided by ADS. Id.
Thereafter, Powe and his wife filed suit in Hinds County, Mississippi against ADS LLC and
Anderson. Id. The circuit court entered summary judgment in favor of ADS LLC and
Anderson, granting immunity under the exclusive remedy provision of the Mississippi Workers’
Compensation Act, and Powe and his wife appealed. Id. On appeal, the court of appeals held
that Mississippi – not Alabama – law applied. The court concluded that as Powe’s statutory
employer, ADS LLC was immune from the plaintiffs’ claims under MISS. CODE ANN. § 71-3-9,
the Mississippi Workers’ Compensation Act exclusive remedy provision, and prime contractor
Anderson enjoyed the same immunity by virtue of the judicial extension of the exclusive remedy
provision in Doubleday. Id. at 1204-1205.
The facts of this case and Powe are similar. Although plaintiff’s claims in this action are
not as detailed or as well articulated as those outlined in Powe, the allegations of negligence and
the lack of any contractual claims, as well as plaintiff’s arguments, are very similar. Just as in
Powe, prime contractor RGI required in its subcontract with Villager that Villager provide
workers’ compensation coverage to its own employees. Just as in Powe, it is undisputed that
Rogers was injured in the course of his employment and not as the result of willful acts of others,
and Rogers was compensated under the Act. Powe at 1204; Docket 43. In accordance with the
Powe decision, the court finds that the plaintiff’s claims are within the meaning enunciated by
the Mississippi Workers’ Compensation Act and that by virtue of existing law, the defendant is
immune from plaintiff’s claims under §71-3-7 and Doubleday.
For the reasons stated above, the court finds that the plaintiff’s claims fall within the
Mississippi Workers’ Compensation Act. RGI is protected from suit by the exclusive remedy
provision of the Act, MISS. CODE ANN. §71-3-7. RGI’s motion for summary judgment is granted
and plaintiff’s claims are dismissed with prejudice. A final judgment in accordance with this
decision will be entered this date
THIS, the 31st day of October, 2014.
s/ S. Allan Alexander
UNITED STATES MAGISTRATE JUDGE
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?