David DOUBLEDAY v. BOYD CONSTRUCTION COMPANY.
No. 53239.
Supreme Court of Mississippi.
August 25, 1982.
Rehearing Denied September 8, 1982.
418 So. 2d 823
En Banc.
PATTERSON, Chief Justice, for the Court:
David Doubleday filed a personal injury suit in the Circuit Court of Grenada County against Boyd Construction Company, a general contractor (hereinafter “Boyd“), and others. He alleged that Boyd failed to provide a reasonable means of warning traffic on the project in which he was engaged, which negligence proximately caused him to be struck and injured by an automobile.
Boyd was the prime contractor on a construction project for the Mississippi Highway Department in Grenada County and had subcontracted with W.T. Ratliff Co., Inc. (hereinafter “Ratliff“) to execute a portion of the construction work. In the subcontract with Ratliff, Boyd required workmen‘s compensation insurance to be carried for the protection of the subcontraсtor‘s employees and compensation benefits were paid by Ratliff‘s insurance carrier to Doubleday for the injuries he sustained while employed by Ratliff.
On motion, the trial court dismissed Doubleday‘s declaratiоn ruling that Boyd, the prime contractor, was a statutory employer of the employees of Ratliff, the subcontractor. Therefore the court held the exclusive remedy available to Doubleday against Boyd for his injuries was workmen‘s compensation benefits. The other defendants were dismissed either voluntarily or on demurrer.
The issue we are called upon to decide is whether a general contractor mаy be sued as a third party in common law negligence by an employee of a subcontractor who has workmen‘s compensation insurance. In dismissing appellant‘s suit against Boyd, the trial court relied on
In Mosley, supra, one Jones brought a personal injury suit against B & M Construction Co. (Mosley) based on its negligence in the construction of a scaffold which fell, severely injuring Jones. Chaney, a subcontractor of Mosley, had hired Jones as a plasterer in furtherance of his subcontract. Chaney did not have workmen‘s compensation insurance for its employees. Mosley argued that workmen‘s compensation benefits was Jones’ exclusive remedy against it because Mosley had procured workmen‘s compensation insurance for the employees of Chaney, the subcontractor. This Court held that Mosley was thе statutory employer of Jones and that his exclusive remedy was workmen‘s compensation benefits. This determination was stated to be dependent upon four factual issues:
This conclusion depends upon fоur ultimate factual issues: (1) Whether Chaney was a plastering subcontractor under Mosley and Bowers; (2) whether Jones was an employee of the subcontractor Chaney; (3) whether under Section 6998-03 Chaney had regularly in his business eight or more employees when Jones was injured; and (4) whether the subcontractor Chaney had failed to secure compensation insurance for his employees. 224 Miss. at 732, 80 So. 2d at 821.
Mills v. Barrett, 213 Miss. 171, 56 So. 2d 485 (1952), dealt with a similar factual situatiоn in that the subcontractor did not provide workmen‘s compensation insurance for the protection of its employees. We held the language of the statute was unambiguous and had the legislative intended effect of making the employees of a subcontractor, who did not carry compensation insurance, the employees of the general contractor for the purposes of the comрensation act. The primary intention of the statute was held to be for the protection of employees of independent contractors or subcontractors who were not financially respоnsible and this laudable purpose was aided by preventing general contractors from relieving themselves of workmen‘s compensation responsibility by shifting it to others.
The appellant argues there is a distinctiоn between the present case and Mosley and Mills, supra, in that there is no dispute that Ratliff had “secured” compensation for its employees. He contends this relieved the appellee of the responsibility of procuring compensation, and thus, Boyd was not entitled to the status of a statutory employer.
Although
Every employer to whоm this chapter applies shall be liable for and shall secure the payment to his employees of the compensation payable under its provisions.
In the case of an employer who is a subсontractor, the contractor shall be liable for and shall secure the payment of such compensation to employees of the subcontractor, unless the subcontractor has secured suсh payment.
This Court has held in several cases that workmen‘s compensation benefits are the exclusive remedy of an injured employee. We were of the opinion that immunity from a common law negligenсe suit extends not only to employers; but also to co-employees, McCluskey v. Thompson, 363 So. 2d 256 (Miss. 1978); corporate officers, Brown v. Estess, 374 So. 2d 241 (Miss. 1979); dual employment cases, Ray v. Babcock & Wilcox Co., Inc., 388 So. 2d 166 (Miss. 1980); agency cases, Robertson v. Stroup, 254 Miss. 118, 180 So. 2d 617 (Miss. 1965); and situations where a subcontractor carries no insurance for the protection of their employees, Mosley v. Jones, 224 Miss. 725, 80 So. 2d 819 (1955), Mills v. Barrett, 213 Miss. 171, 56 So. 2d 485 (1952). The reason for extending immunity from suit in those particular situations was that the intention and philosophy of the workmen‘s compensation act would be abrogated if the responsibility of carrying compensation insurance could be transferred from a general employer to another. McCluskey, supra. We stated in Stubbs v. Green Brothers Gravel Co., Inc., 206 So. 2d 323 (Miss. 1968):
Reason and consistency require that we apply the provisions of the act and the decisions interpreting it with an equal hand, both where coverage is asserted and where the exclusive remedy provisions of the statute are involved. Id. at 325.
In all states, workmen‘s compensation laws are in derogation of the common law in that they replacе traditional negligence actions for a no-fault system of payment to employees and their families for job-related injuries. By the exchange, the remedy of workmen‘s compensation benefits, insofar
This Court has repeatedly held that “any construction given to the workmen‘s compensation act must be sensible as well as liberal,” and “the intent of the legislature must be determined by the total language of the statute and not from a segment considered apart from thе remainder.” McCluskey v. Thompson, 363 So. 2d 256, 259 (Miss. 1979).
With these rules in mind, we must ascertain the legislative intent of
Professor Larson speaks to this in 2A Larson, Workmen‘s Compensation Law, § 72.31(b) (1982), pointing out:
... The object of the “contractor-under” statutes is to give the general contractor an incentive to require subcontractors to carry insurancе. But if the general contractor does conscientiously insist on this insurance, his reward, under these cases, is loss of exemption from third-party suit. 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.” He is under a continuing potential liability; he has thus assumed a burden in exchange for which he might well be entitled to immunity from damage suits, regardless of whether on the facts of a particular case actual liability exists... .
The question is whether the legislature intended to impose upon a general contractor the responsibility of securing workmen‘s compensation benefits for employees of a subcontractor and if so intended, does this responsibility, when fulfillеd, give the general contractor immunity from suit as a third party tortfeasor the same as if the insurance had been provided by the general contractor?
The Florida Supreme Court, deciding this issue1 in Miami Roofing & Sheet Metal Co. v. Kindt, 48 So. 2d 840 (Fla. 1950), held:
We hold, therefore, that a contractor is liablе for and shall secure compensation to the employees of his subcontractors, even though such contractors have the status of independent contractors, and that if such contractor hаs in fact, secured such compensation, either directly or indirectly through the subcontractor, the remedy under the Act is exclusive. Id. at 843.
We agree with this decision even though
Mosley, supra, reaches the same result. In it Mosley protected itself from common law tort liability by procuring workmen‘s
AFFIRMED.
SUGG and WALKER, P. JJ., and BROOM, ROY NOBLE LEE, HAWKINS, and PRATHER, JJ., cоncur.
BOWLING and DAN M. LEE, JJ., dissent.