IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI NO. 2018-CA-01240-COA JOHN HIBBLER APPELLANT

v. INGALLS SHIPBUILDING SHIPYARD A/K/A HUNTINGTON INGALLS INCORPORATED APPELLEE

DATE OF JUDGMENT: 07/20/2018 TRIAL JUDGE: HON. ROBERT P. KREBS COURT FROM W HICH APPEALED: JACKSON COUNTY CIRCUIT COURT ATTORNEY FOR APPELLANT: ALSEE McDANIEL ATTORNEY FOR APPELLEE: RICHARD P. SALLOUM NATURE OF THE CASE: CIVIL - PERSONAL INJURY DISPOSITION: AFFIRMED - 12/17/2019 MOTION FOR REHEARING FILED: MANDATE ISSUED: BEFORE BARNES, C.J., McCARTY AND C. WILSON, JJ. C. WILSON, J., FOR THE COURT: ¶1. John Hibbler was injured in a work-related accident o n Septem ber 28, 2012. Having received pay

m ent through workers’ com pensation, Hibbler l ater f i l e d s uit f

or dam ages against Huntington Ingalls Incorporat e d (Ingalls). I ngalls had contracted w ith Hibbler’s

e m p l o y e r , A v a

y a G o v e r n m e n t S o l u

t i o ns (Avay a), to install t e l e c o m m u n i c a t i o n s i n fr a s t

r u c t u r e

on a ship that Ingalls was building. Ingalls f iled a m otion f

or sum m ary judgm ent, which the circuit court granted. Hibbler now appeals. Finding no error, we af f irm

. FACTS AND PROCEDURAL HISTORY ¶2. Hibbler worked f

or Avay a as a network-sy stem s engineer. In August 2 012, Hibbler and three other A vay a e ngineers began installing a telephone-com m unications sy s tem on ahelicopter-assault ship. Ingalls had contracted with the United States Navy to build the ship.

Hibbler’s work was to take three m onths and included the installation of cabling under the raised f l o o r o f t h e ship’s com m

unications room . According to Hibbler, Avay a worked in coordination with painters em ploy ed by a separa t e c o n tractor. Hibbler and his Avay a coworkers installed cables under the raised f loor in a section of t he com m u nications room during the day

shif t. The painting crew f

ollowed at night to paint the cables, replacing the f loor decking w hen they were f inished. Occasionally , the ship’s decking was not replaced, and Hibbler and his co-workers would navigate the com m unications room by walking on the squared steel-f

loor f ram i ng. ¶3. On Septem

ber 28, 2012, Hibbler began a twelve-hour shif t at 7:00 a .m . Between 5:30 and 6:30 p.m . that day , h e was pulling cable line across the com m u nications room f

loor when he stepped on an unsecured deck plate. The plate gave way , causing H i b b l e r t o f all into a hole that was about three-f e et deep. As a result of his accident, H ibbler i njured his back and hit his head on a cabinet as he f ell. He experienced dizziness. ¶4. These events took place a t t h e I n g a l l s - o w n e d s h i p y ard located in Pascagoula, Mississippi, where the ship was being c o n s t r u c t e d

. Ingalls avers t hat it w a s the “prim e
contractor to the U.S. Navy ” f o r the construction of the ship at issue. 1 Ingalls also asserts that it r equired all s ubcontractors, l ike Avay a, to carry w o rkers’ c om pensation insurance f

or their

1 T h e u n d erly in g co n tra c ts b etw een th e N a v y an d In g alls, a n d b e t w een In g alls an d A v ay a, are n o t in th e reco rd ; th e o n ly p ro o f o f f e red b y In g a l ls r eg ard in g its statu s as a “co n tracto r” is co n tain ed in an af f id av i t ex ecu ted b y In g a l ls’s m an ag er S tev en P ierce, w h ich is f u rth er d iscu ssed in f

ra. 2em

ploy e es under the Mississippi W orkers’ Com pensation Act (MW CA) 2 and the L ongshore and H arbors W orkers’ C om pensation Act (LHW CA) 3 until c om pletion and f

inal acceptance of the co n t ractors’ work. Following Hibbler’s accident, Avay a’s workers’ com pensation insurer b egan pay ing workers’ com pensation b en ef

its to Hibbler under the MW CA and continued those pay

m ents through May 31, 2 013. Thereaf ter, the i n s urer paid additional benef its under the LHW CA. ¶5. On Septem

ber 25, 2015, H ibbler f

iled a com plaint against Ingalls in the Circuit Court of Jackson County , M i s sissippi. In his com plaint, Hibbler a lleged entitlem ent to

com pensatory dam ages and other relief against Ingalls due to Ingalls’s “negligence in f ailing

to m aintain and otherwise secure the f l ooring upon the ship

. . . .” Ingalls answered, asserting that Hibbler’s “sole and exclusive rem edy

. . . i s under any a pplicable workers’ com

pensation statutes including . . . the [ LHW CA] and the [ MW CA].” ¶6. Af ter the parties c onducted discovery , Ingalls f iled a m otion f

o r sum m ary

judgm ent

on M ay 29, 2018. Ingalls a sserted that i t w as not liab l e f or injuries to a n independent contractor’s em

ploy ee a rising out o f perf

orm ance of the contracted work. Ingalls also argued that it was im m

u ne to Hibbler’s negligence s uit a s a “statutory em ploy er” under the MW CA beca use Hibbler had already r eceived his workers’ com p ensation benef

its through its subcontractor Avay a’s w o r kers’ c om p ensation coverage. In s upport of i ts m otion, Ingalls

r e l i e d on p ortions of Hibbler’s deposition and provided the circuit court with an af f id a v i t

2 S ee M iss. C o d e A n n . § 7 1 -3 -7 (S u p p . 2 0 1 2 ).

3 S ee 3 3 U .S .C . § 9 0 4 (a) (2 0 1 8 ). 3f

rom Steven Pierce, Ingalls’s “Manager – Ri s k M a n a gem ent.” In his af f idavit, Pierce testif i ed that Ingalls, as “a contractor engag e d i n t h e business of ship construction and repair,” required all its subcontractors to carry workers’ com

pensation insurance. Pierce’s af f idavit did not m ention the p a r t i c u l ar ship on which H ibbler was i njured or Avay a’s contract specif

ically

. ¶7. In respons e t o I ngalls’s m otion, Hibbler asserted that Ingalls’s negligence was the direct a n d proxima t e c ause of his injuries. H ibbler a rgued that under the MW CA, his “acceptance of workers’ com pensation benef

its [ did] not af

f ect n or preclude [ h is] right to sue any other party

at law f or such injuries.” ¶8. O n J u l y 1 9 , 2018, the circuit c ourt held a hearing on I ngalls’s m otion f or sum m ar y judgm ent. The next day , the circuit court granted Ingalls’s m otion, f inding: (1) Ingalls was [ Hibbler’s] statutory em ploy er at the t im e of the accident and is theref ore im m u ne f r om [ Hibbler’s] claim s in t his case by the exclusive rem edy provisions of the [ MW CA]; (2) Ingalls i s n o t l i a ble f o r [ Hibbler’s] injuries because at the tim e of the accident, [ Hibbler] wa s e mp l oy ed by [ Avay a] – an independent c o ntractor

– and [ Hibbler ’s] injuries arose out of or w ere intim ately connected w ith the work Avay a contracted to perf o rm ; and (3) There i s no adm issible evidence a s t o w ho lef t the deck plate in question unsecured at the t im e o f the accident which is an essential elem ent of [ Hibbler’s] case. Based on these f

indings, the court dism issed Hibbler’s claim s with prejudice. ¶9. Hibbler now appeals the circuit court’s ruling, asserting that there is a genuine i ssue of m aterial f

act r elating to w hether Ingalls was his s tatu t o r y e m ploy er under the circum stances, and whether Ingalls’s em ploy ees were n egligent in m aintaining the ship deck

4plates, which caused h i s accident and resultant injuries. Ingalls responds that, as a general

contractor, i t enjoy s im m unity under the MW C A f r o m tort liability f

or Hibbler’s injuries. Finding no error, we af

f irm

. S TANDARD OF REVIEW ¶10. Appellate review of a trial court’s grant or denial of a m o tion f or sum m ary

judgm ent is de novo. Adams v. Graceland Ctr. of Oxford, LLC , 208 S o. 3d 575, 579 (¶9) (Miss. 2017). Rule 56(c) of the Mississippi R ules of Civil Procedure provides that sum m ary judgm ent is
proper w here “the pleadings, depositions, answers t o interrogatories and adm issions on f ile, together with the a f

f idavits, i f a ny , show that t here is no genuine issue as to a ny m aterial f act and that the m oving p arty i s entitled to a judgm ent a s a m atter of law.” “W hen considering

a m otion f

or sum m ary

judgm ent, the deciding court m ust v iew a l l evidence in a light m ost f avorable to the n on-m oving party .” Morton v
. City of Shelby , 984 So. 2 d 3 23, 3 29 (¶10) (Miss. Ct. App. 2007). W hile the m ovant has the burden o f showing that no genuine issue of m aterial f

act exists, the party opposing the m otion m ust be diligent and “is r equired to set f orth specif

ic f acts showing that genuine issues f or trial do exist.” Richardson v. N orfolk S. Ry. Co. , 923 So. 2d 1002, 1007 (¶8) (Miss. 2006). DISCUSSION
I. Ingalls as Hibbler’s Statutory Employer ¶11. T h i s case hinges on w hether Ingalls was Hibbler’s “statutory e m ploy er” u n d e r t h e MW CA or s im

p ly a third party o utside of that la w ’ s requirem ents and protections. The
MW CA provides that:

51) C om pensation shall be pay able f o r disability or death of an em ploy ee f rom injury o r occupational disease arising out of and in t he course of em ploy m ent, without regard to f

ault a s to the cause of the injury or occupational disease.

. . .

. . . . (6) In the case of

an em ploy er who is a subcontractor, the contractor s hall be liable f or and shall s ecure the pay m ent of s uch com

pensation to em

ploy ees of the subcontractor, unless the subcontractor has secured such pay m ent. Miss. Code Ann. § 71-3-7(1), (6) (Rev. 2011). The MW CA f u rther provides that: [ T]he liability of an em

plo y e r to pay com

p ensation shall be exclusive and in place of all other liability of such em ploy er to the em

ploy ee . . . e xcept that if an em ploy e r f ails to secure p ay

m ent o f com

pensation as req u i r e d by this chapter, a n injured em

ploy ee . . . m ay elect to c laim com pensation under this chapter, or to m aintain an action at law f or dam ages on a c count of such injury or death.”
M i s s . C ode Ann. § 7 1 -3-9 (Rev. 2011). In cases “where [ a] subcontractor provide[ s]

com pensation coverage to its em p loy ees pursuant to its c o ntract with the prim e contractor, the prim e contractor qualif ie[ s] as a statutory em

ploy er and [ i ]s im m

une f rom a com m on law

tort suit by the i njured em ploy e e.” Salyer v. Mason Techs. Inc. , 6 9 0 S o . 2 d 1 1 83, 1184 (Miss. 1997) ( citing Doubleday v. Boyd Constr. Co. , 418 So. 2d 823, 826-27 (Miss. 1982)); accord Powe v
. Roy Anderson Const. Co. , 910 So. 2d 1197, 1200 (¶8) (Miss. C t. App. 2005). As to t hird parties, howe v e r , “ [ t ]he acceptance of com pensation benef

its f rom . . . an

em ploy e r or insurer

. . . shall not af f ect the right of the em

ploy ee or his dependents to sue any other party

at law f or such injury . . . .” Miss. Code Ann. § 71-3-71 (Rev. 2011). ¶12. Based on the record bef ore us, w e agree with the circuit court’s conclusion that Ingalls

was Hibbler’s statutory em ploy er under section 71-3-9 and theref ore im m une f r om Hibbler’s

com m on law tort claim s. S teven Pierce’ s a f f i d avit testim ony , which is uncontradicted by

6Hibbler, ref l ects that Ingalls is “a contractor engaged in the business of s hip construction and repair” at its Pascagoula y ard. P ierce’s af f idavit f urther avers that during the tim e Hibbler worked at the shipy ard, Ingalls “required the contractors who perf orm ed w or k a t Ingalls Shipy ard to carry workers’ com pensation insurance to c over their own e m ploy e es . . . .”
W h ile Avay a and Ingalls’s contract is n ot in t he record, 4 Hibbler s p ecif ically pled the existence of their c ontractual relationship, and he r aises no dispute as to A vay a’s contractual obligation to provide workers’ comp e n s a t i o n coverage. A nd to the extent that Hibbler contends t hat Ingalls was not a c ontractor in building t he ship at issue, his a ssertion is based on his own speculation, not probative evidence suf f i cient to def

eat sum m ary

judgm ent. ¶13. I n s u pport of h is contention that Ingalls is not a statutory em ploy er and i s ther e f

o r e subject to his claim s, H ibbler r elies on M agee v. T ranscontinental Gas Pipe Line Corp. , 551 So. 2d 182 (Miss. 1989), and Falls v. Mississippi Power & Light Co. , 477 So. 2d 2 54 (Miss. 1985). In those cases, our suprem e court f ound t hat the def

endants w ere no t s tatutory

em ploy e rs under section 71-3-9. The Magee and F alls def endants were both right-of -way

owners that had contracted with the injured plaintif f s ’ em ploy ers to perf

orm work on their

4 T h e u n d e r l y in g co n tracts w o u ld b e p ro b ativ e o f th e issu es h ere. C f. M o n ro e v. L a n co C o n st. In c. , N o . 1 :1 4 cv 2 5 0 , 2 0 1 5 WL 1 2 5 6 4 9 4 2 , at * 3 (S

. D

. M iss. 2 0 1 5 ) (h o ld i n g th at d ef en d an t w as en titled to su m m ary j u d g m en t as statu to ry e m p lo y er u n d er th e M WC A , a s s u b stan tiated b y lan g u a g e o f d ef en d an t’s p rim e co n tract w ith p ro j ect o w n er an d su b co n tract w ith p l ain tif

f ’s em p lo y er). A t o ral arg u m e n t , th e p a rties d isp u ted th e reaso n s w h y n eith er th e co n tract b e tw e en th e U n ited S tates N a v y a n d In g alls, n o r th e co n tract b et w een In g alls an d A v ay a, w ere p ro d u ced d u rin g d isco v ery . H ib b ler h ad p r o p o u n d ed a g en eral req u est f

o r d o cu m en ts, b u t w h en In g alls f ailed to p ro d u ce th e co n tracts, H ib b ler n e v er m o v ed to c o m

p el o r p u rsu e f

u rth er d isco v ery to o b tain th em . E v en th o u g h t h e b areb o n es P ierce af

f i d av it d o es n o t sp e cif

ically ad d ress th e co n tracts o r p r o j ect at issu e, it n o n eth e less stan d s u n co n trad i cted b y an y ad m issib le ev i d en ce o f

f e red b y H ib b ler. 7respective project s ites. Magee , 551 So. 2d at 184; Falls , 477 So. 2 d at 258. Because they

were site owners, the def

endants w ere not “contractors” as contem plated by section 71-3-7 and theref

o r e w e r e not “statutory em ploy ers” im m

une f rom suit u nder the MW CA. Id

. Specif ically , a s owners o f the s ites where the injuries o ccurred, the def endants were not “contractors” liable under s e ction 71-3-7(6) to cover “em ploy ees of the[ ir] subcontractor.” Miss. Code Ann. § 7 1-3-7(6); see Magee , 551 So. 2 d at 1 84; Fall s , 4 7 7 S o . 2d at 258. Instead, the plaintif

f s’ em p loy ers were t h e d ef

endants’ general contractors, not subcontractors. And while the def endants thus had no o b l i g ation to pay workers’

com pensation benef

its to their contractor’s e m ploy ees, they likewise were not shielded f rom non-MW C A claim s as statutory em ploy ers. M

agee , 551 So. 2d at 184; Falls , 477 So. 2d at 258. ¶14. Magee and F

alls are distinguishable f ro m t h e c a s e s u b j u d ice. Here, there is no evidenc e i n t h e record that suggests that Ingalls was t he “owner” of t he ship it was constructing, irrespective of whether Ingalls owned the shipy ard itself

. T o the contrary , the record evidence shows that I n galls, in building the s hip at i ssue, “ can be seen as nothing other than what persons of c om m on understanding would label t hat of a g e n e r a l o r prim e contractor.” Salyer , 690 So. 2d at 1186. Further, Ingalls hired Avay a as a s ubcontractor to assist i n the ship’s com

p letion, and Ingalls required Avay a to p rovide workers’ com pensation
coverage f

or its em ploy ees, consonant with the obligations set f orth in section 71-3-7(6). W e f ind no error i n the circuit court’s conclusion that Ingalls w as Hibbler’s statutory em ploy er and thus im m

une f rom f urther liability

under section 71-3-9.

8II. Other Grounds for Summary Judgment

¶15. Even if Ingalls w ere not H ibbler’s statutory e m ploy er and thus shielded f rom f urther liability , the c i r c u i t court n onetheless properly entered sum m ary judgm ent as to Hibbler’s claim s. The circuit court concluded that Ingalls was e ntitled to s um m a r y judgm ent because

at t he tim e of his accident, Hibbler was e m ploy ed by A v ay a, a n i ndependent contractor, and his injuries were intim ately conn e c t e d w ith t he work A vay a contracted with I ngalls to perf orm . See Miss. Code Ann. § 11-1-66 (Supp. 2 004); see also Ratcliff v. Ga. P ac. Corp. , 916 So. 2d 546, 546 (¶10) (Miss. Ct. App. 2005) (s t a ting that “the owner has no duty to protect the independent contractor or his em p loy ees f rom dangers a rising out of or i ntim ately connected with the work to be perf orm ed by the independent contractor”). 5 A dditionally , the circuit court determ ined that Hibbler of f ered “no a dm issible evidence as to who l ef t the deck plate in question unsecur ed at the tim e of the accident,” l eaving an essential elem ent of Hibbler’s case wholly unsupported. E.g. , Galloway v. T he T rave l e r s I ns. Co. , 515 So. 2d 678, 6 83 ( Miss. 1987) (“The plain language of Rule 56(c) m andates the ent r y o f sum m ary judgm ent

. . . against a party who f ails to m ake a showing suf f icient to establish the existence of an elem ent essential to that party ’s case . . . .”) (quoting Celotex Corp. v. Catrett , 477 U.S. 317, 322 (1986)). ¶16. H i b b l e r c o n tends that the circuit court erred in these f indings because t here i s a

5 H ib b ler d o es n o t sep arately ad d ress o n ap p eal th e circu it co u rt’s h o l d in g th at In g alls o w ed H ib b ler n o d u ty to p r o tect h im f r o m risk s o r in

j u ry in t im ately co n n e cted w ith th e w o rk A v ay a, as an in d e p en d en t co n tracto r , w as co n tracted to p erf o rm . T o th e e x ten t H ib b ler ch allen g es th e circu it co u r t ’s ru l in g o n th is b asis, w e n o te th at h e c ites n o co n trary au th o rity an d o f f ers n o a rg u m en t b ey o n d h is co n ten t io n s related to ev id en ce o f n eg lig en ce an d res ip sa lo q u i tu r, w h ich is ad d ressed in f ra. 9genuine issue of f act a s to whether Ingalls em p loy ees were n egligent in m aintaining the f loor deck plates. Hibbler also contends that “Ingalls arguably had the right of cont r o l and

m anagem ent over the rem oving a n d s ecuring of the deck plates” a t issue, s uch that the doctrine of

res ipsa loquitur applies to salvage his claim s. W e disagree on both points. ¶17. To succeed in a claim of negligence, Hibbler m u st s h ow “(1) [ t]he existence of a duty

. . . to conf

orm to a specif

ic standard of conduct f

or the prot e c t i o n o f o thers a gainst an unreasonable risk of injury ; (2) [ a] f ailure t o c onf

orm to such standard

. . . ; (3) [ t]he breach of such duty by the def

endant was a proxim ate cause of the plaintif f ’s injury ; [ and] (4) injury

. . . .” Burnham v. Tabb , 508 So. 2 d 1072, 1074 (Miss. 1987) (citing W

. Page K eeton et al., Prosser & Keeton on the Law of Torts § 41, at 263-72 (5th ed. 1984)). W here “a party

. . . f ails to m ake a s howing s uf f icient to establish th e e xistence of an elem ent essential to that party ’s case,” sum m ary

judgm ent is proper. Galloway , 515 So. 2d at 683. ¶18. Here, as the circuit c ourt f ound, Hibbler f

ailed to adduce any adm issible evidence that Ingalls e ither owed him a duty to m aintain the deck pla t e s o r b reached any duty that was owed. To the contrary , there is no record evidence indicating who lef t the deck plate at issue unsecured, and Hibbler only of f ered speculation as to who did so: Q. You s aid there were som e shipy ard workers in there that y ou m ight have their nam es as well. A. They actually

. . . like I told y ou f rom t he beginning, I called them ship lot workers. Q. They could have been contractors as well? A. I’m

sure they were . . . .

1 0If any

thing, the record suggests that the painters who worked in the com m unications room

at night were, like Hibbler and his Avay a coworkers, em p loy ed not by

Ingalls but by other subcontractors. Moreover, by the tim e Hibbler’s accident occurred, Avay a’s em ploy ees had been working in the com m unications room f

or m ore than t en hours, a nd there is no evidence

t hat any one else h ad control of that area during their shif t. S im p ly , Hibble r p r o v i d e d n o evidence at the sum m ary -judgm ent stage to support his contention that Ingalls owed him a duty in m aintaining the deck plates. Because Hibbler c a n n o t e stablish all t he required elem ents of his negligence claim , the circuit court d id n ot err i n granting sum m ary j udgm ent on this basis. ¶19. Finally , Hibbler’s assertion that Ingall s h a d the “right of control and m anagem ent over the rem o ving and securing of the deck plates,” such that the doctrine o f res ispa l o q u i tur applies, likewise m isses the m ark. As a threshold m atter, Hibbler did n o t r a i s e this theory in t he circuit court and thus cannot raise it f or the f irst tim e on appeal. Alexander v
. Daniel , 904 So. 2d 172, 183 ( ¶26) (Miss. 2005). Regardless, proper application of res ispa loquitur “requires f

our elem ents: 1) the m a tter m ust be w ithin the com m on knowle d g e of lay m en; 2) the instrum ental i t y c a using the dam a ge m ust be u nder the exclusive control of the def en d a n t ; 3 ) t h e occurrence m ust be such a s in the ordinary course of things would not happen if those in control of the instrum entality u sed proper care; and 4) the occurrence m ust
not be due to any v o luntary act on the part of the plaintif f

. ” Brown v. Baptist Mem’l Hosp.- DeSoto Inc ., 8 06 S o. 2d 1131, 1135 (¶17) ( Miss. 2002) (citing Coleman v. Rice , 706 So. 2d 696, 698 (Miss. 1997)). As discussed supra, Hibbler cannot show that Ingalls had exclusive

1 1c o n trol o f the f looring deck plates, and res ipsa loquitur is inapposite to salvage Hibbler’s claim s. CONCLUSION ¶20. W e f

ind no error in the circuit court’s f inding that In g a l l s w a s Hibbler’s statutory

em ploy e r. As Hibbler’s statutory em ploy er, Ingalls i s im m

une f rom f urther liability under section 7 1-3-9. To the e xtent it is raised on appeal, the circuit court did not err i n concluding that Ingalls was entitl e d t o sum m ary judgm ent because Hibbler’s injuries were i ntim ately connected with the work that Avay a contracted with Ingalls to perf orm . Nor did the circuit

court err in concluding that Hibbler lacked adm issible evi dence t o support his negligence claim . Accordingly , we af f irm the grant of

sum m ary judgm ent. ¶21. AFFIRMED. BARNES, C.J., C ARLTON AND J. WILSON, P.JJ., GREENLEE, WESTBROOKS, TINDELL, McDONALD, LAWRENCE AND McCARTY, JJ., CONCUR.

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