IN THE SUPREME COURT OF MISSISSIPPI

NO. 94-CA-01008-SCT

ERNEST RICHMOND

v.

BENCHMARK CONSTRUCTION CORP.

DATE OF JUDGMENT: 09/19/94

TRIAL JUDGE: HON. ROBERT LEWIS GIBBS

COURT FROM WHICH APPEALED: HINDS COUNTY CIRCUIT COURT

ATTORNEY FOR APPELLANT: LANCE L. STEVENS

ATTORNEY FOR APPELLEE: ROGER C. RIDDICK

NATURE OF THE CASE: CIVIL - TORTS (OTHER THAN PERSONAL

INJURY AND PROPERTY DAMAGE)

DISPOSITION: AFFIRMED - 4/10/97

MOTION FOR REHEARING FILED:

MANDATE ISSUED: 5/1/97

BEFORE DAN LEE, C.J. , PITTMAN AND MILLS, JJ.

MILLS, JUSTICE, FOR THE COURT:

¶1. Ernest Richmond appeals a summary judgment entered against him by the Circuit Court of Hinds

County.

¶2. Richmond worked for United Piping Systems, Inc.(UPS). UPS maintained workers' compensation

insurance coverage on all its workers, including Richmond, at all relevant times to this suit. On

August 17, 1992, Richmond was injured while working on a renovation project at a Jitney Jungle

store located on Highway 80 in Brandon, Mississippi.

¶3. UPS had subcontracted to perform plumbing work for the renovation project with the general

contractor, Benchmark Construction Company (Benchmark).

¶4. Both the President of Benchmark and the President of UPS agreed that a condition of the

subcontract was that UPS secure workers' compensation coverage for its employees. However,

Benchmark had no written agreement requiring UPS to maintain worker's compensation coverage on

the Jitney renovation project. UPS's insurance agent never issued a "Certificate of Insurance" to

Benchmark. Nevertheless, UPS maintained workers compensation insurance covering its employees
at all times relevant to this case.

¶5. Based on the evidence summarized above, both parties moved for summary judgment.

Benchmark moved to dismiss the case. Richmond moved for partial summary judgement asking the

trial court to dismiss the statutory employer/exclusivity defense. The trial court below granted

summary judgment in favor of Benchmark.

STANDARD OF REVIEW

¶6. Rule 56(c) of the Mississippi Rules of Civil Procedure allows summary judgment where there are

no genuine issues of material fact such that the moving part is entitled to judgment as a matter of law.

To prevent summary judgment, the non-moving party must establish a genuine issue of material fact

by means allowable under the Rule. Lyle v. Mladinich, 584 So. 2d 397, 398 (Miss. 1991).

¶7. This Court employs a de novo standard of review in reviewing a lower court's grant of summary

judgment. Short v. Columbus Rubber & Gasket Co., Inc., 535 So. 2d 61, 63 (Miss. 1988).

Evidentiary matters are viewed in the light most favorable to the non-moving party. Palmer v. Biloxi

Regional Medical Center, Inc., 564 So. 2d 1346, 1354 (Miss. 1990). If any triable issues of fact

exist, the lower court's decision to grant summary judgment will be reversed. Otherwise, the decision

is affirmed. Brown v. Credit Center, Inc., 444 So. 2d 358, 362 (Miss. 1991).

¶8. In Brown, this Court stated:

When a motion for Summary Judgment is made and supported as provided in this rule, an

adverse party may not rest upon the mere allegations or denials of his pleadings, but his

response, by affidavits or as otherwise provided in this rule, must set forth specific facts

showing that there is a genuine issue for trial. If he does not so respond, Summary Judgment if

appropriate shall be entered against him.

Id. at 364, quoting Miss. Rule Civ. Proc. 56(e).

¶9. The party opposing the motion must be diligent. Grisham v. John Q. Long V.F.W. Post, 519

So. 2d 413, 415 (Miss. 1988). The non moving party "remains silent at her peril. For one thing, the

non-movant may not rest upon allegations or denials in her pleadings . . . Rather, the party opposing

the motion must by affidavit or otherwise set forth specific facts showing that there are indeed

genuine issues for trial." Fruchter v. Lynch Oil Co., 522 So. 2d 195, 198-99 (Miss. 1988).

THE LAW

I. Whether the statutory "exclusive remedy" provisions bar the Plaintiff's claim for

damages.

¶10. Section 71-3-9 of the Mississippi Code, in relevant part, reads:

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, except that if an employer
fails to secure payment of compensation as required by this chapter, an injured employee, or his

legal representative in case death results from the injury, may elect to claim compensation under

this chapter, or to maintain an action at law for damages on account of such injury or death. In

such action the defendant may not plead as a defense that the injury was caused by the

negligence of a fellow servant, nor that the employee assumed the risk of his employment, nor

that the injury was due to the contributory negligence of the employee.

Miss. Code Ann. § 71-3-9 (1972).

¶11. Section 71-3-7, in pertinent part, reads:

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.

Miss. Code Ann. § 71-3-7 (1972).

¶12. In Doubleday v. Boyd Constr. Co., 418 So. 2d 823 (Miss. 1982), this Court faced an similar

situation where the contractor contractually required the subcontractor to obtain workers'

compensation insurance. The worker was injured on the job and the subcontractor's insurance carrier

paid compensation benefits. Id. at 418. The worker sued the contractor in tort. The Court stated that

"the Legislature did not intend to subject a general contractor to common law liability if he complied

with § 71-3-7 by requiring the subcontractor to have workers' compensation insurance." Id. at 826.

¶13. Initially, Richmond argues that a general oral agreement between Benchmark and UPS is

insufficient for the Court to hold Benchmark "secured" payment. We find that such oral agreement is

satisfactory under the facts of this case. Had the Legislature sought to require a "written" agreement,

it could have so required. Richmond also argues that the agreement was merely alleged. However,

Richmond provides the Court with no authority requiring Benchmark to have entered into a job

specific written agreement with UPS in order to maintain a defense of exclusivity/statutory employer.

¶14. We note that the oral agreement is supported by the undisputed affidavit of Eddie Conger,

President of UPS, and the deposition and affidavit of Joseph David Marsh III, President of

Benchmark. No proof opposing these facts was offered by the plaintiff. The party opposing the

motion must be diligent. Grisham v. John Q. Long V.F.W. Post, 519 So. 2d 413, 415 (Miss. 1988).

The non-moving party

remains silent at her peril. For one thing, the non-movant may not rest upon allegations or

denials in her pleadings . . . Rather, the party opposing the motion must by affidavit or

otherwise set forth specific facts showing that there are indeed genuine issues for trial.

Fruchter v. Lynch Oil Co., 522 So. 2d 195, 198-99 (Miss. 1988).

¶15. In the present case, Richmond relies on nothing to disprove the proof that there was a

longstanding oral agreement between Benchmark and UPS that UPS would carry workers'
compensation insurance as a condition of working as a subcontractor on various Benchmark jobs.

Thus, the trial court properly found for Benchmark on this issue.

II. Whether Doubleday v. Boyd Construction Company and its progeny are applicable?

¶16. Richmond's next argument is that Benchmark is not the type of contractor afforded the

protection of the statutory employer's exclusivity defense as set forth under Doubleday. Richmond

argues that he falls in the exception to this defense noted by the cases of Magee v. Transcontinental

Gas Pipe Line Corp., 551 So. 2d 182 (Miss. 1989); Nash v. Damson Oil, 480 So. 2d 1095 (Miss.

1985); and Falls v. Mississippi Power & Light, 477 So. 2d 254 (Miss. 1985). In each of these cases,

a non-general contractor party who owned property interests on the site where the injury occurred

was sued. The Court held in each of these cases that the property owners could not assume the

posture of a contractor. Where those defendants had no responsibility under the Workers'

Compensation Act, they therefore enjoyed none of the benefits of the act.

¶17. The Falls, Damson, and Magee line of cases are inappropriate to Richmond. Benchmark is the

contractor of the Jitney renovation contract, not the owner of the property.

III. Whether the Doubleday "statutory employer" doctrine has been abandoned by this

Court.

¶18. Richmond asks the Court to overrule Doubleday. He relies predominantly on Justice Sullivan's

special concurrence in Nash v. Damson Oil. There Justice Sullivan stated: "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." Nash v. Damson Oil Corp., 480 So. 2d 1095, 1102 (Miss. 1985)

(Sullivan, J., specially concurring).

¶19. Justice Sullivan argued that where the contractor did not in fact "secure" workers' compensation

insurance it would be liable in tort for any negligent act on its job site which injured a subcontractor's

employee.

¶20. This argument is misplaced. The language in Doubleday unfortunately focuses on the verb

"secure." The statute in fact reads, "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." (Emphasis added.) The emphasis

should not be on the verb "secure" but on the relationship between the parties. The statute does not

require the contractor to put a condition in a contract. The statute makes the contractor stand in the

place of the subcontractor, if the subcontractor fails to obtain workers' compensation coverage.

¶21. As a practical matter, the prime contractor will want (and require) the subcontractor to have

coverage, and the wise contractor will have in place coverage which protects him from the failure of

the subcontractor to so do. The statute accomplishes the important purpose of creating a duty in the

contractor to fulfill the subcontractor's duties, should the subcontractor fail to fulfill its part of the

historical bargain created by the workers' compensation statutes. If a contractor-subcontractor

relationship exists, the employee of a subcontractor covered by workers' compensation insurance is

prohibited from making a common law claim for negligence or gross negligence against the
contractor.

¶22. We decline to overrule Doubleday, and continue to follow its longstanding precedent.

CONCLUSION

¶23. The judgment of the Circuit Court of Hinds County is affirmed.

¶24. 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:

¶25. I disagree with the majority's perfunctory affirmance of the circuit court's grant of summary

judgment in favor of Benchmark Construction Company. Today's decision permits a primary

contractor to claim statutory employer status on the basis of an alleged oral agreement with a

subcontractor requiring the subcontractor to provide workers' compensation insurance for its

employees. In so ruling, the majority overlooks the fact that its decision not only precludes Richmond

from pursuing a tort action against the general contractor to recover damages not covered by

workers' compensation, but also his employer, United Piping Systems, is penalized for providing

compensation coverage for its employees since neither it nor its insurance carrier can exercise their

rights of subrogation by joining or intervening in Richmond's case. Moreover, affording such a broad

interpretation to the statutory employer immunity provided for in Miss. Code Ann. § 71-3-7 not only

penalizes subcontractors and their insurance carriers, but also provides a disincentive for general

contractors to provide a safe work site for their employees and those of the subcontractors they hire.

Accordingly, I dissent.

¶26. In Doubleday v. Boyd Construction Co., 418 So. 2d 823 (Miss. 1982), the frequently criticized

case upon which the majority relies, the 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.

418 So. 2d at 825. The Doubleday Court expressed its perception of the Legislature's 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.

Looking at 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)

. In the case sub judice, however, we have only an alleged oral agreement between Benchmark and

UPS that the subcontractor would provide coverage.

¶27. In Nash v. Damson Oil Corp., 480 So. 2d 1095 (Miss. 1985), both the majority and concurring

opinions addressed Doubleday's misguided 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). Doubleday's grant of immunity from

tort liability to prime contractors merely because they require any subcontractor working for them to

provide workers' compensation insurance for its employees, as Nash suggests, defies logic.

Extending that immunity where there is merely an alleged oral agreement to provide coverage

highlights the concerns raised in Nash.

¶28. While today's decision is good for Benchmark, it is not good for business. Subcontractors are

penalized for complying with the workers' compensation statutes and, along with their insurance

carriers, are precluded from exercising their statutory right to join or intervene in a tort action against

a third party when the third party is a prime contractor. No incentive is provided for prime

contractors to worry about safety at the construction site. Accordingly, I dissent.

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