IN THE SUPREME COURT OF MISSISSIPPI

NO. 93-CA-00958-SCT

DANNY N. SALYER

v.

MASON TECHNOLOGIES, INC., FORMERLY MASON

CHAMBERLAIN, INC.

DATE OF JUDGMENT: 07/16/93

TRIAL JUDGE: HON. JAMES E. THOMAS

COURT FROM WHICH APPEALED: HANCOCK COUNTY CIRCUIT COURT

ATTORNEY FOR APPELLANT: JAMES KENNETH WETZEL

ATTORNEYS FOR APPELLEE: DORRANCE AULTMAN

CAROL ANN ESTES

NATURE OF THE CASE: CIVIL - PERSONAL INJURY

DISPOSITION: AFFIRMED - 3/27/97

MOTION FOR REHEARING FILED:

MANDATE ISSUED: 4/17/97

EN BANC.

MILLS, JUSTICE, FOR THE COURT:

¶1. SCI Steelcon was a subcontractor performing certain work on a project for which the prime

contractor was Mason Technologies, Inc. When Danny N. Salyer, an employee of SCI Steelcon

working on the project, was injured in the course of his employment, he received $75,000 in benefits

pursuant to SCI Steelcon's workers' compensation coverage. Salyer then filed a common law

negligence action against Mason Technologies seeking both compensatory and punitive damages. On

May 16, 1993, the Circuit Court of Hancock County granted summary judgment in favor of Mason

Technologies, ruling that as Salyer's statutory employer, Mason Technologies was entitled to the

exclusivity of remedies defense under Mississippi's Workers' Compensation Act, from which

judgment Salyer appeals to this Court. Finding that Mason was a prime contractor entitled to tort

immunity, we affirm.

I.

FACTS
¶2. Mason Technologies, Inc. ("Mason"), formerly Mason Chamberlain, Inc., is a Delaware

corporation doing business in Mississippi. On December 17, 1986, the United States Army hired

Mason as a prime contractor to customize the Mississippi Army Ammunition Plant at the Stennis

Space Center for production of M483-A-1 projectiles. Mason entered into a subcontract with the

Austin Company to provide the plant's new material conveyor handling system. Austin, in turn,

subcontracted with Mason to remove the old conveyors and other equipment, and subcontracted with

several other companies, including Prabb Robotics, to install the new conveyor system. Prabb

Robotics then entered into a subcontract with SCI Steelcon, a Michigan corporation, specifically to

install the new equipment.

¶3. Danny N. Salyer was hired by SCI Steelcon to supervise installation and debugging of the new

conveyor system. On October 17, 1988, while supervising the uncrating of new equipment at the

project site, Salyer tripped over an anchor bolt that had secured part of the old system, thus injuring

his left knee. For his injury, Salyer received $75,000 in benefits pursuant to SCI Steelcon's Michigan

workers' compensation coverage. Salyer then filed a common law negligence action in the Circuit

Court of Hancock County against Mason seeking both compensatory and punitive damages. On July

16, 1993, the trial court granted summary judgment in favor of Mason, ruling that as the prime

contractor, Mason was the statutory employer of its subcontactors' employees, including Salyer, and

thus Mason was entitled to the exclusivity of remedies defense under Mississippi's Workers'

Compensation Act.

II.

DISCUSSION

¶4. Miss. Code Ann § 71-33-71 (1972) provides, in relevant part, as follows:

The acceptance of compensation benefits from or the making of a claim for compensation

against an employer or insurer for the injury or death of an employee shall not affect the right of

the employee or his dependents to sue any other party at law for such injury or death . . . .

(emphasis added). At issue, therefore, is whether Mason is "any other party" pursuant to § 71-33-71,

or whether it is a contractor pursuant to § 71-3-7, making it immune from liability under § 71-3-9's

exclusivity of remedy provision. Salyer argues that Mason was not, as a matter of law, Salyer's

statutory employer and immune from third-party negligence actions against it. Mason argues that

under our decision in Doubleday v. Boyd Construction Co., 418 So. 2d 823 (Miss. 1982), Mason, as

the prime contractor, was immune from tort liability for Salyer's injury. We agree with Mason.

¶5. In Doubleday, we held 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. 418 So.

2d at 826-27. We reasoned:

It would be paradoxical, however, in our opinion, to hold as the appellant entreats that a

general contractor risk personal injury judgments in common law suits if he complies with the

statute by contractually securing compensation insurance by his subcontractor, but if he lets

work to subcontractors who do not comply with the act, then his liability is limited to the sums
provided by the act. We do not think the legislature intended such an improbable result.

Id. at 826. Likewise, it would be equally paradoxical to hold that a general contractor limits his

liability by hiring subcontractors who do not comply with the act, but that he risks common law

personal injury judgments if he hires subcontractors who in fact do comply with the act. This is

exactly the ruling which Salyer seeks in this appeal.

¶6. Although there is no evidence in the record that Mason contractually required its subcontractors

to provide compensation coverage for their employees, we see no reason to draw a distinction

between prime contractors who contractually require subcontractors to provide compensation

coverage on one hand, and prime contractors who hire subcontractors who already provide

compensation coverage on the other hand. We believe the legislative intent of the workers'

compensation statutes would not be effectuated based upon such a superficial, technical distinction.

Rather, "[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.'" Doubleday, 418 So. 2d at 826

(quoting Larson, Workmen's Compensation Law, § 72.31(b) (1982)). We find that hiring

subcontractors who comply with the act by providing compensation coverage to its employees

satisfies this "overall responsibility."

¶7. Salyer argues that Mason's reliance on Doubleday is misplaced, and urges this Court to apply

instead the cases of Nash v. Damson Oil Corp., 480 So. 2d 1095 (Miss. 1985) and Falls v.

Mississippi Power & Light Co., 477 So. 2d 254 (Miss. 1985), wherein we found the employers to be

not entitled to the act's exclusivity of remedies defense. We find that Nash and Falls, however, are

clearly distinguishable and inapplicable to the case sub judice. In those cases, we held as we did

because the employers did not fit the meaning of "contractor" within the statute as contemplated by

Doubleday. Nash, 480 so. 2d at 1100; Falls, 477 So. 2d at 258. In the case below, on the other

hand, Mason did meet Doubleday's description of a "contractor."

¶8. In Doubleday, Boyd Construction Company was the prime contractor on a construction project

for the Mississippi Highway Department and subcontracted with W. T. Ratcliff Company to execute

a portion of the construction work. 418 So. 2d at 824. This qualified Boyd as a "contractor" within

the meaning of Miss Code Ann. § 71-3-7 (1972). In Falls, on the other hand, Mississippi Power &

Light Company was granted a special use permit by the National Park Service for certain land along

the Natchez Trace Parkway. 477 So. 2d at 255. Mississippi Power & Light hired Deviney Company

to keep its right-of-way clear of trees, brush and stumps. Id. at 256. This Court found that "[t]he

permit did not constitute appellee/permittee as a general or prime contractor for work to be done by

Deviney Company along the right-of-way of appellee pursuant to its contract with appellee." Id. at

258.

¶9. In Nash, Damson Oil Corporation was the lessee of an oil producing unit in Mississippi. 480

So. 2d at 1096. Damson contracted with Trigger Contractors, an independent contractor, for the

performance of certain work which Damson might require from time to time with respect to the oil

and gas wells. Id. This Court distinguished Damson from Doubleday's Boyd as follows:

The operative point is that Damson's interest, use and activities with respect to the premises are

wholly different in nature from those of one ordinarily considered a general or prime contractor
-- the sort of contractor we believe contemplated by Doubleday, see Section 71-3-7. Damson's

position with respect to the premises is similar to that of Mississippi Power & Light Company

in Falls and unlike that of Boyd Construction Co. in Doubleday. Damson is an operator or

even in a sense an owner pro hac vice, a lessee. On the other hand, Damson lies outside the

common understanding of such terms as "prime contractor" or "general contractor". Therefore,

Damson is not the sort of "contractor" within the meaning and contemplation of Section 71-3-7.

Nash, 480 So. 2d at 1100. The critical distinctions between Boyd in Doubleday and the employers in

Nash and Falls, therefore, were that Boyd "had no ownership interest in the premises," and

"occupied the position persons of common understanding would label general or prime contractor."

Id. at 1098. We find that these very distinctions apply to Mason in the case sub judice.

¶10. Mason certainly had no ownership interest in the construction site owned by the U.S. Army, and

Mason's contractual duty to customize the ammunition plant can be seen as nothing other than what

persons of common understanding would label that of a general or prime contractor. Clearly, Mason

falls within the meaning of "contractor" as contemplated not only by Doubleday, but by Nash and

Falls as well. It can only be the legislature's intent, therefore, that Mason should be entitled to the

exclusivity of remedies defense provided by the act.

¶11. Salyer also urges this Court to follow its ruling in Morris v. W.E. Blain & Sons, Inc., 511 So.

2d 945 (Miss. 1987), where we held that a subcontractor does not share any immunity claimed by the

prime contractor when the subcontractor's negligence causes injury to the employee of another

subcontractor. However, the defendant in Morris was a co-subcontractor only, not the prime

contractor. Morris is thus inapplicable to the case sub judice. The fact that Mason was a

subcontractor as well as the prime contractor is of no concern. The only employers not afforded tort

immunity are those such as owners, permittees and lessees. The statutes provide tort immunity to

prime contractors. There is no exception which allows a tort claim against a prime contractor, who is

always afforded tort immunity as a statutory employer. This Court has stated, "It is obvious that the

purpose of the legislature was to prevent the general contractor from escaping liability by employing

subcontractors who were not financially responsible and leaving the employees unprotected." Mills v.

Barrett, 213 Miss. 171, 174-75, 56 So. 2d 485, 486 (1952). Here, Mason did not so attempt to

escape liability, for SCI Steelcon was financially responsible and its employees were protected.

Mason, as the prime contractor, was entitled to tort immunity from liability for Salyer's injury, and

thus summary judgment was proper.

¶12. AFFIRMED.

LEE, C.J., PRATHER, P.J., PITTMAN, ROBERTS AND SMITH, JJ., CONCUR. McRAE, J.,

DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY SULLIVAN, P.J. AND

BANKS, J.

McRAE, JUSTICE, DISSENTING:
¶13. By ignoring salient facts in the record and omitting them from its opinion, the majority neglects

to reveal that at the time of Danny Salyer's injury and the alleged act of negligence which caused it,

Mason Technologies was not acting as a general contractor, but working as a subcontractor hired by

another subcontractor to remove old machinery from the installation site. That critical aspect of the

case notwithstanding, the majority proceeds to label Mason an all-purpose "general contractor"and

deem it Salyer's "statutory employer," erroneously clothing it with immunity from tort liability.

Moreover, I disagree with the majority's broad pronouncement that any contractor who happens to

hire subcontractors which provide workers compensation insurance for their employees is deemed

immune from tort liability pursuant to the exclusivity of remedies provision of Miss. Code Ann. § 71-

3-9. The Workers' Compensation Act was designed to provide streamlined relief for workers injured

on the job, not to immunize employers from liability when someone is injured. Accordingly, I dissent.

I.

¶14. Pursuant to a December 17, 1986 contract with the United States Army, Mason Technologies

was hired as the prime contractor to customize the Mississippi Army Ammunition Plant at the Stennis

Space Center for production of M483-A-1 projectiles.

¶15. Mason entered into a subcontract with the Austin Company to provide the plant's new material

conveyor handling system. Austin was required to "furnish all labor, materials, tools, machinery,

equipment, facilities, supplies and services and all things necessary for completion of the cargo

material handling system in strict conformity with the specifications provided." Lacking adequate

manpower and equipment to remove all of the existing material handling equipment from the

premises, Austin, in turn, entered into a subcontract with Mason to remove the conveyors and other

old equipment. Austin also subcontracted with several other businesses, including Prabb Robotics, to

install the new system. Prabb Robotics, in turn, entered into a subcontract with SCI Steelcon, a

Michigan Corporation, specifically to install the new conveyor equipment.

¶16. Danny Salyer, then a resident of Leslie, Michigan, was hired by Steelcon to supervise installation

and debugging of the new conveyor system. It was Salyer's understanding that pursuant to its

subcontract with Austin, Mason was in charge of removing the existing equipment and that Steelcon's

role was limited to the installation of the new conveyor line.

¶17. Removal of the old equipment was completed on October 16, 1988. Early the next morning,

after a representative of the Austin Company advised him that the premises had been cleared for

inspection, Salyer went to the site to monitor the uncrating of the new equipment. About ten feet

away from where the new equipment was to be installed, Salyer tripped over an anchor bolt that had

secured part of the old system. He testified in his deposition that the bolt was obscured by grease, oil

and other debris that had been left on the on the floor.

II.

¶18. In his appeal to this Court, Salyer asserts that the circuit court and Mason Technologies were

mistaken in their reliance upon Doubleday v. Boyd Construction Co., 418 So. 2d 823 (Miss. 1982)

and that contrary to the lower court's findings, Mason was not, as a matter of law, Salyer's statutory

employer and immune from third-party negligence actions against it.
¶19. Miss. Code Ann. § 71-33-71 provides, in relevant part, as follows:

The acceptance of compensation benefits from or the making of a claim for compensation

against an employer or insurer for the injury or death of an employee shall not affect the right of

the employee or his dependents to sue any other party at law for such injury or death . . . .

As the majority notes, the issue for our consideration is whether Mason is "any other party" pursuant

to § 71-33-71, or whether it is a contractor pursuant to Miss. Code Ann. § 71-3-7, making it immune

from liability under § 71-3-9's exclusivity of remedies provision. Under the facts as presented in the

record, I would find that Mason was functioning as a subcontractor at the time of Salyer's injury and

thus is "any other party" open to suit by an injured employee.

¶20. In Doubleday, we found that where a prime contractor contractually required its subcontractors

to carry insurance on its employees and the subcontractor had provided coverage for its employees,

the prime contractor, under the circumstances of the case, was not "any other party," pursuant to

Miss. Code Ann. § 71-3-71, which could be sued by the injured employee of the subcontractor. 418

So. 2d at 826-827. In that case, Doubleday, the injured employee of a subcontractor, sought to bring

a negligence action against the prime contractor, whose alleged failure to warn oncoming traffic of

the road construction project on which Doubleday was working was the proximate cause of injuries

he received after being hit by a car. Doubleday's employer, the T.W. Ratliff Co., carried workers'

compensation insurance for its employees as required under the terms of its subcontract with the

prime contractor, Boyd Construction Company.

¶21. The Doubleday Court explained

Although Miss. Code Ann. § 71-3-9 (1972), dictates workmen's compensation as an employee's

exclusive remedy against his employer, Miss. Code Ann. § 71-3-71 (1972), grants the employee

or his dependents the right to sue at law "any other party." The question thus becomes one of

determining who is a "third party" within the meaning of the statute. The section which we must

construe is Miss. Code Ann. § 71-3-7 (1972), which states in part:

Every employer to whom 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 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.

Doubleday, 418 So. 2d at 825. The Court expressed its perception of the legislative intent in granting

immunity from tort litigation to some prime contractors, stating, "It is our opinion the legislature did

not intend to subject a general contractor to common law tort liability if he complied with § 71-3-7

by requiring the subcontractor to have workmen's compensation insurance." Id. at 826. Turning next

to Mosley v. Jones, 224 Miss. 725, 80 So. 2d 819 (1955), where a prime contractor was found to

have protected itself from tort liability by providing workers' compensation insurance for employees

of its subcontractors, the Doubleday Court concluded that Boyd similarly protected itself by

contractually requiring its subcontractors to carry insurance on their employees. Doubleday, 418 So.

2d at 826-827. See also Morris v. W.E. Blain & Son, 511 So. 2d 945 (Miss. 1987)(prime contractor
held to be statutory employer where contracts between subcontractors as well as with prime

contractor required subcontractors to provide workers' compensation coverage for employees).

¶22. In Nash v. Damson Oil Corp., 480 So. 2d 1095 (Miss. 1985) and Falls v. Mississippi Power &

Light Co., 477 So. 2d 254 (Miss. 1985), this Court reached a different result. Recognizing that a

contractor could not gain tort immunity "by voluntarily electing to say it had compensation

obligations which in fact and law it did not have," both decisions refused to find that the general

contractors involved were statutory employers. Nash, 480 So. 2d at 1100. In each case, we found

that the subcontractors had provided insurance for their employees and that the defendant/appellees

were not contractors as contemplated by Doubleday.

¶23. Both the majority and concurring opinions in Nash address the fallacy of Doubleday's emphasis

on the general contractor's contractual requirement that the subcontractor provide compensation

coverage for its employees. Noting Damson's assertion that it was entitled to immunity because it

required the subcontractor, Trigger (Nash's employer), to provide compensation coverage, the

majority in Nash observed:

The argument proves too much, for carried to its rational limits it would mean that any time A

has a contractual relationship with B, A, by contract requiring B to secure compensation

coverage for B's employees, would be entitled to the protections of the exclusiveness of liability

provisions of the Act, even though A be a grievous tortfeasor.

Nash, 480 So. 2d at 110. As the concurring opinion further recognizes, regardless of any contract

requirement, subcontractors as "employers" are required independently to procure coverage pursuant

to the Workers' Compensation Act.

Doubleday emphasizes - and Damson Oil argues - that some significance ought to attach to the

fact that the contract between the contractor [Boyd, MP & L, Damson] and the subcontractor

[Ratliff, Deviney, Trigger] required each subcontractor to purchase and obtain in effect

workers' compensation insurance. What this notion overlooks is that in each of these cases the

subcontractor was independently obligated to secure compensation insurance. Each of these

subcontractors is an "employer" within Mississippi Code Annotated § 71-3-3(e) who would

have been statutorily obligated to afford compensation under the Act if the contract were

wholly silent. Leaving the contract aside, each of these subcontractors would have been guilty

of a misdemeanor had it failed to secure compensation and would have been subject to

punishment by fine or imprisonment or both. Miss. Code Ann. § 71-3-83 (1972).

It is a complete fiction to suggest that the contractor in these cases has "secured" the payment

of compensation to the injured employees of the subcontractors. In each of these cases, the

compensation was secured by the subcontractor/employer. Under Section 71-3-7, the

contractor need secure compensation only when the subcontractor has failed to do so. Since the

subcontractors in these three cases did not default on their statutory obligations, the

contractor's secondary obligation never matured. Therefore, the contractors were not "liable

for" and did not "secure" the payment of compensation under Section 71-3-7.

The fact that the employers acted above and beyond their statutory obligations by arranging for

the subcontractor to provide compensation insurance (which the subcontractors were already
statutorily obligated to do) is beside the point. Because the subcontractors met their Section 71-

3-7 obligations, the contractors' duty was never triggered and the contractors therefore had no

opportunity to default on or satisfy their statutory obligations.

Nash, 480 So. 2d at 1103 (Sullivan, J., specially concurring).

¶24. The case sub judice clearly illustrates the points raised in Nash. Salyer's employer, SCI

Steelcon, provided compensation insurance for its employees and, indeed, paid more than $75,000.00

in benefits to Salyer pursuant to the Michigan Workers' Compensation Act. The record does not

indicate whether Mason required its subcontractors to provide compensation coverage for their

employees. Moreover, SCI Steelcon's contractual relationship with Mason was somewhat attenuated:

Mason had subcontracted the provision and installation of the new conveyor system with which

Steelcon was involved to the Austin Corporation, which, in turn, subcontracted various parts of the

job to several businesses, including Prabb Robotics. Prabb Robotics then subcontracted aspects of the

system installation to Steelcon. The record is also silent as to the terms of the various

subcontractors's contracts. The fact remains, however, that Steelcon met its statutory obligations

without any apparent prompting from the prime contractor. Further, no claim for compensation was

ever made against Mason. Therefore, any obligation on Mason's part which might have given rise to

the exclusivity of liability provision never came into being.

¶25. The majority, however, falls prey to the folly of Doubleday and its reward to general contractors

for requiring their subcontractors to do what they are already required to do by law. Further, since

the record does not indicate whether Mason required its subcontractors to carry compensation

coverage and regardless of the fact that Mason was acting as subcontractor when Salyer was injured,

the majority takes Doubleday one step further and designates Mason a statutory employer,

apparently broadening statutory employer immunity to cover just about any contractor who happens

to hire a subcontractor who happens to provide its employees with workers' compensation insurance.

Contrary to the majority's perception of legislative intent, the beneficent purposes of the Act can

hardly be served by a ruling that further narrows the worker's avenues of recourse when injured on

the job.

It is within our actual and judicial knowledge that the benefits afforded under our Act are

among the lowest in the nation. It is similarly within our actual and judicial knowledge that, if

compensation benefits were the sole source of income for an injured worker, that worker would

be well below the minimum subsistence level by American standards. Without doubt, we are

required to construe the Act liberally, sensibly and reasonably. Such a construction hardly

mandates taking away third party tort claims when the language of the Act of the legislature has

not clearly done so.

Nash, 480 So. 2d at 1103 (Sullivan, J., specially concurring). Especially under the facts of the case

sub judice, where an employee of a subcontractor has no control over where he is sent to work, the

party designated as "statutory employer" and relieved of any tort liability for injuries caused to

employees on the site is further freed from any incentive to provide for the safety of its "statutory

employees."

¶26. Nash and Falls further raise questions as to whether Mason is a contractor as contemplated by

Doubleday or whether it is more properly "any other party" pursuant to § 71-3-71. As discussed
above, unlike Boyd Construction in Doubleday, Mason did not have a direct relationship with the

subcontractor, Steelcon. Mason's position, however, is distinguishable also from that of Damson Oil

and Mississippi Power and Light Co. In Nash, this Court found that Damson, the lessee of the oil

well where Nash was injured, was an "operator or even in a sense an owner pro hoc vice, a lessee,"

and thus, not a contractor within the meaning of § 71-3-7. Nash, 480 So. 2d at 1100. In Falls, where

a tree trimmer whose employer worked under contract with MP&L was killed while topping pine

trees around power lines on the Natchez Trace Parkway, the utility company was held not to be a

contractor pursuant to Doubleday because its contract with the employer was pursuant to provisions

it was required to fulfill in accordance with the right-of-way permit it had been granted by the

National Park Service. Falls, 477 So. 2d at 258. That permit, the Court found, did not put MP&L in

the same position as a general or prime contractor. Id. The majority, however, insists that Mason

"clearly" falls within the definition of contractor as contemplated by Doubleday, Nash and Falls, and

concludes that "[i]t can only be the [L]egislature's intent, therefore, that Mason should be entitled to

the exclusivity of remedies defense provided by the [A]ct." Again the majority appears to have lost

sight of whom the Act was intended to protect. Its reasoning flies in the face of the beneficent

purposes of workers' compensation law, which was intended to redistribute the social costs of workrelated injuries from the injured workers and the taxpayers to employers.

III.

¶27. The dual role Mason played as both prime contractor and subcontractor serve to remove it from

the Doubleday definition of contractor or employer. Recalling the facts of the case, Austin

Corporation subcontracted with Mason to remove the old conveyors and other equipment from the

building. It was in the performance of duties related to that subcontract that Mason employees

committed the alleged act of negligence-leaving a bolt sticking up out of the floor. It is, therefore,

Mason, the subcontractor, not Mason, the prime contractor, which is the third party at issue. In

Morris v. W.E. Blain Equipment Co., 511 So. 2d 945 (Miss. 1987), this Court held that a

subcontractor working under a prime contractor does not share any immunity claimed by the prime

contractor when its negligence causes injury to the employee of another subcontractor. Id. at 948-

950. Under the facts of this case, Mason, accordingly, should not be afforded shelter from a

negligence action brought by Salyer under the statutory employer umbrella. To find Mason immune

from suit and to expand the statutory employer immunity beyond even the too broad parameters set

forth in Doubleday is contrary to the purposes of the Workers' Compensation Act. Lest we forget, it

is the injured worker whom the Act was intended to protect.

¶28. The majority opinion further leaves Salyer's employer, SCI Steelcon, paying the bills for Salyer's

injuries and without recourse against Mason, the subcontractor whose negligence caused the injuries.

In addition, Steelcon is burdened by the additional premiums which result when it is forced to pay

workers' compensation benefits that cannot be subrogated to the negligent party. Perhaps it is time

we announce, as we have in our sovereign immunity cases, that where a contractor or subcontractor

carries liability insurance, any immunity claimed under the aegis of the "statutory employer"

designation should be waived to the extent of coverage carried. To do so would benefit both the

actual employer and the employee, and protect the rights of both. Accordingly, I dissent.

SULLIVAN, P.J., AND BANKS, J., JOIN THIS OPINION.