178 So. 3d 709
Miss.2015Background
- Wayne Kelly died in a trench collapse at a Hattiesburg construction site where Hanco was general contractor; Kelly was working for American Air, which leased him from Landrum PEO.
- American Air subcontracted with Hanco and required insurance; Landrum provided workers’ compensation coverage (Liberty Mutual) and named Hanco as certificate holder.
- Kelly’s wrongful-death beneficiaries sued multiple defendants, including Hanco and American Air, alleging negligence and OSHA violations.
- Hanco answered the complaint on December 22, 2010, asserting the Workers’ Compensation Act exclusivity defense (Miss. Code § 71-3-9) but did not seek enforcement of that defense until filing a summary-judgment motion on March 1, 2013.
- During the intervening period, Hanco actively participated in litigation: joining codefendants’ motions, designating experts, and taking depositions.
- The trial court denied summary judgment; on interlocutory appeal the Mississippi Supreme Court considered whether Hanco waived the exclusivity defense under the Horton waiver doctrine.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Hanco waived the Workers’ Compensation exclusivity defense by actively litigating for >26 months without timely pursuing enforcement | The exclusivity defense was waived as a matter of law due to prolonged active participation without seeking termination via the defense | Hanco contends § 71-3-9 provides an exclusive remedy and the defense was preserved by pleading it in the answer | Court held Hanco waived the exclusive-remedy affirmative defense under Horton because it delayed >26 months and actively litigated without promptly seeking enforcement |
Key Cases Cited
- MS Credit Ctr., Inc. v. Horton, 926 So. 2d 167 (Miss. 2006) (establishes that an unreasonable delay in asserting an affirmative defense coupled with active participation waives the defense)
- Grimes v. Warrington, 982 So. 2d 365 (Miss. 2008) (applied Horton to find waiver of MTCA immunity after multi-year participation without timely enforcement)
- East Mississippi State Hospital v. Adams, 947 So. 2d 887 (Miss. 2007) (held defendants waived jurisdictional defenses after prolonged active participation)
- Hertz Commercial Leasing Div. v. Morrison, 567 So. 2d 832 (Miss. 1990) (defines what constitutes an avoidance or affirmative defense)