Galvan et al v. Mississippi Power Company et al

Filing 197

MEMORANDUM OPINION AND ORDER granting 166 Motion to Dismiss. Plaintiff's Complaint is dismissed with prejudice as to LandCoast Insulation, Inc. A separate judgment will be entered herein. Signed by District Judge Keith Starrett on 5/22/12 (scp)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
SOUTHERN DIVISION
LORENA RICO VELAZQUEZ, SURVIVING SPOUSE
OF ULISES JIMENEZ RODRIGUEZ, DECEASED,
INDIVIDUALLY, AND ON BEHALF OF THE HEIRS AT LAW
AND WRONGFUL DEATH BENEFICIARIES OF ULISES
JIMENEZ RODRIGUEZ, DECEASED

VS.

PLAINTIFF

CIVIL ACTION NO. 1:11-cv-407-KS-MTP

MISSISSIPPI POWER COMPANY; SOUTHERN
COMPANY SERVICES, INC.; PIC GROUP, INC.
A/K/A THE PIC COMPANIES; HARSCO CORPORATION;
LANDCOAST INSULATION, INC.; KENNETH M. CHEVIS,
ANDJOHN DOES 1 THROUGH 10

DEFENDANTS

CONSOLIDATED WITH
ALFONSO GALVAN, ET AL.

PLAINTIFFS

VS.

CIVIL ACTION NO. 1:10-cv-159-KS-MTP

MISSISSIPPI POWER COMPANY; ET AL.

DEFENDANTS

MEMORANDUM OPINION AND ORDER
This matter is before the court on a Motion to Dismiss [#166] filed on behalf of
the defendant, LandCoast Insulation, Inc. The court, having reviewed the motion, the
response, the briefs of counsel, the pleadings and exhibits on file and being otherwise
fully advised in the premises finds that the motion is well taken and should be granted.
The court specifically finds as follows:

FACTUAL BACKGROUND
On September 18/19, 2008, LandCoast Insulation, Inc. (“LandCoast”) and Patent

Construction Systems (“Patent”) entered into an agreement entitled “Proposal for
Equipment Rental Services” wherein Patent agreed to supply LandCoast with several
hundred thousand dollars of materials necessary for the installation of interior boiler
scaffolding for a project at Mississippi Power Plant Victor Daniel in Jackson County,
Mississippi. On November 4, 2008, during the final stages of the erection of the
scaffolding, the entire structure failed, injuring seven LandCoast employees, one fatally,
Velazquez’s decedent, Ulises Jimenez Rodriguez.
Velazquez has brought suit on behalf of herself as Rodriguez’s surviving spouse
as well as on behalf of the heirs at law and wrongful death beneficiaries of Rodriguez.
As the suit pertains to LandCoast, it claims that LandCoast was responsible for
Rodriguez’s death as a result of gross and simple negligence in the construction of the
scaffolding. More particularly, the suit claims that LandCoast breached its duty to
provide a safe workplace by, among other things: failing to adequately screen its
employees; failing to adequately train its employees; failing to insure that a certified
“competent person” was present at all times; and, utilizing preliminary rather than final
drawings to construct the scaffolding.
In response, LandCoast has filed the present motion under Rule 12(b)(6)
contending that Velazquez has failed to state a claim upon which relief may be granted.
In ruling on a 12(b)(6) motion, the Court may not go outside the pleadings, specifically
the complaint in this case. "The Rule 12(b)(6) motion . . . only tests whether the claim
has been adequately stated in the complaint." 5A C. WRIGHT & A. MILLER, FEDERAL
PRACTICE AND PROCEDURE: Civil 2d § 1356 at 298 (1990).
As the Fifth Circuit has stated, "We may not go outside the pleadings. We accept
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all well-pleaded facts as true and view them in the light most favorable to the Plaintiff.
We cannot uphold the dismissal 'unless it appears beyond doubt that the Plaintiff can
prove no set of facts in support of his claim which would entitle him to relief.'" Colle v.
Brazos County, Texas, 981 F.2d 237, 243 (5th Cir. 1993)(internal footnotes and citations
omitted). See also, Cinel v. Connick, 15 F.3rd 1338, 1341 (5th Cir. 1994).
While a complaint need not contain detailed factual allegations to survive a
12(b)(6) motion, the United States Supreme court has held that a plaintiff’s “obligation to
provide the ‘grounds’ of his ‘entitlement to relief’ requires more than labels and
conclusions, and a formulaic recitation of the elements of a cause of action will not do.”
Bell Atlantic Corp. v. Twombly, 550 U.S. 540, 127 S.Ct. 1955, 1964-65, 167 L.Ed.2d
929, 940 (2007)(other citations omitted). Of course, if any matters outside the complaint
are considered, the motion is converted to one for summary judgment. See Murphy v.
Inexco Oil Co., 611 F.2d 570, 573 (5th Cir. 1980).
In the present action, LandCoast, as Rodgriguez’s employer, asserts that
Velazquez’s Complaint fails to state a claim against it due to the exclusive remedy
provisions of the Mississippi Workers Compensation Act (“MWCA.” LandCoast
correctly argues that Mississippi statutory law entitles an employee injured while in the
course and scope of her employment to receive workers’ compensation benefits, but
prohibits that employee from maintaining an action in common law against the employer
for all but intentional acts. Mississippi case law is clear that when an employee is
injured while in the course and scope of his employment, the sole and exclusive remedy
of the employee against the employer is that provided for by the Mississippi Workers’
Compensation Act. Sawyer v. Dependence of Head, 510 So.2d 472, 478 (Miss. 1978);
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see also Brown v. Estess, 374 So.2d 241, 242-43 (Miss. 1979).
The exclusivity provision of the Mississippi Worker’s Compensation Act, Miss.
Code Ann. § 71-3-9, provides, in pertinent part:
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 . . .
Under this provision, an employee is not entitled to both workers’ compensation
benefits and common law damages. Stevens v. FMC Corp., 515 So.2d 928, 932 (Miss.
1987). Further, the Mississippi Supreme Court has repeatedly held that allegations of
“gross negligence” by an employer do not suffice to allow a plaintiff to avoid the effects
of the exclusive remedy doctrine. According to Dunn, Mississippi Workmen’s
Compensation § 22:
An act of “gross negligence” which produces an injury in the course of
employment is not a willful tort within the exception which allows a suit of
common law. Since such an injury is nevertheless compensable, the Act
provides the exclusive remedy and the employer is not deprived of
immunity from actions and torts simply by reason of gross neglect of the
safety of the employee. Allegations of gross negligence simply cannot
rise to the level of intentional tort so as to allow plaintiff to avoid the
exclusive remedy provision of the Workers’ Compensation Act.
Citing Mullins v. Biglane Operating Co., 778 F.2d. 277, 279 (5th Cir. 1985).
Thus, the gross negligence allegations of Velaquez do not state a claim for an
intentional tort that would allow a direct recovery in tort against LandCoast. Indeed,
Velazquez, to be fair, does not argue as much.
On August 17, 2009, Velaquez filed a Petition to Controvert with the Mississippi
Workers Compensation Commission in Henry Pena a/k/a Ulises Jimenez Rodriguez v.
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Landcoast Insulation, Inc. and Zurich American Insurance Company; MWCC No.
0812110. In light of that filing, she argues that she should be allowed to proceed in tort
because in the workers compensation claim, LandCoast and its carrier have asserted,
as a defense, that Rodriquez was an illegal alien who obtained his employment with
LandCoast by using a fraudulent identification. She makes this argument as an appeal
to the notions of fair play and equity, without citing any authority.
The purpose of the Mississippi Workers' Compensation Act is to provide
compensation to an injured employee without regard to fault. See Franklin v Tedford, 18
So.3d 215, 220 (Miss. 2009). If a person is injured in the course and scope of his
employment, his medical expenses and a portion of his wages will be paid. In exchange
for this certainty of medical and limited wage payment, the employee has given up the
right to proceed at common law with a tort action. Conversely, in exchange for payment
of the above sums, the employer gains immunity from the tort suit. Id.
However, the employer retains the right to contest the compensability of the
comp claim. See, e.g.. Edwards v. WorldWide Personnel Services, Inc., 843 So.2d 730
(Miss. App. 2002); and Miss. Code Ann. § 71-3-7 (voluntary intoxication). If the
employer is successful in contesting the claim, the employee does not then attain the
right to pursue tort remedies. Simply put, “a claimant is barred from filing an action at
common law, other than an intentional tort, against his employer or co-employee for
injury or death sustained while in the course and scope of his employment.” Sawyer v.
Head, 510 So.2d at 477. The Mississippi Workers Compensation Act contains the
exclusive remedy for Velazquez regarding the death of Rodriguez as it pertains to
LandCoast, regardless of any defenses raised to the comp claim by LandCoast.
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IT IS THEREFORE ORDERED AND ADJUDGED that the Motion to Dismiss
[#166] filed on behalf of the defendant, LandCoast Insulation, Inc. is granted and the
Plaintiff’s complaint is dismissed with prejudice as to LandCoast Insulation, Inc. A
separate judgment will be entered herein in accordance with Rule 58, Federal Rules of
Civil Procedure.
SO ORDERED AND ADJUDGED, this the 22nd day of May, 2012.

s/ Keith Starrett
UNITED STATES DISTRICT JUDGE

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