Julianna Lamar v. Thomas Fowler Trucking, Inc. ( 2003 )

IN THE SUPREME COURT OF MISSISSIPPI
NO. 2004-CT-00280-SCT
JULIANNA LAMAR
v.
THOMAS FOWLER TRUCKING, INC.
ON WRIT OF CERTIORARI
DATE OF JUDGMENT: 12/19/2003
TRIAL JUDGE: HON. ANDREW C. BAKER
COURT FROM WHICH APPEALED: PANOLA COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANT: JOHN GRIFFIN JONES
GILSON DAVIS PETERSON
T. STEWART LEE, JR.
CRAIG ROBERT SESSUMS
ATTORNEYS FOR APPELLEE: MATTHEW ANDERSON TAYLOR
PAUL T. LEE, JR.
NATURE OF THE CASE: CIVIL - WORKERS’ COMPENSATION
DISPOSITION: AFFIRMED - 05/24/2007
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
EN BANC.
DICKINSON, JUSTICE, FOR THE COURT:
¶1. A subcontractor’s employee was killed while hauling logs. The subcontractor claims
it is entitled to the “exclusive remedy” immunity provided by Mississippi’s workers’
compensation statutes, Miss. Code Ann. § 71-3-1 et seq. (Rev. 2000) (the “Act”), because
the general contractor deducted workers’ compensation premiums from payments due the
subcontractor and because one of the deceased employee’s daughters elected to accept
workers’ compensation benefits from the Mississippi Loggers Self-Insured Fund. The
deceased employee’s other daughter, the Appellant, received no workers compensation
benefits, and filed a wrongful death suit. The question presented is whether the workers’
compensation statutes provide the subcontractor immunity from the wrongful death suit.
BACKGROUND FACTS AND PROCEEDINGS
¶2. The opinion rendered in this case by the Court of Appeals includes an excellent
recitation of the facts. Lamar v. Fowler Trucking, 2006 Miss. App. LEXIS 249, 2004-CA-
00280-COA (Miss. Ct. App. 2006). We provide the following abbreviated version.
¶3. Ira Bobo (“Bobo”) was killed while working for Fowler Trucking, which was
transporting logs for Golden Timber, Inc.1 Bobo’s youngest daughter, Tracie, was
considered a dependent as defined by section 71-3-25 of the Act, and was voluntarily paid
death benefits by Golden Timber’s workers’ compensation carrier.2 Bobo’s oldest daughter,
Julianna Lamar (“Lamar”) however, was not a dependent as defined by the Act, and was paid
nothing. Lamar filed a wrongful death suit against Fowler Trucking, Golden Timber and two
of Golden Timber’s employees. Golden Timber and its employees were dismissed by agreed
order, because Golden Timber was Bobo’s statutory employer and, therefore, was afforded
immunity under the Act. Fowler Trucking moved for summary judgment, arguing that it also
was protected by the exclusivity provision of the Act because it procured workers’
compensation insurance through Golden Timber.
A. Trial Court Proceeding
1
Fowler Trucking was a subcontractor of Golden Timber.
2
Mississippi Loggers Self-Insured Fund.
2
¶4. At the hearing on the motions for summary judgment, Fowler Trucking asserted that
it paid premiums to Golden Timber in order to be included under Golden Timber’s workers’
compensation policy. Golden Timber’s bookkeeper testified in her deposition that money
was withheld from payments due to Fowler Trucking to cover the cost of the workers’
compensation policy.
¶5. Relying on Bevis v. Linkous Constr. Co., 856 So. 2d 535 (Miss. Ct. App. 2003), the
trial court held the Fowler Trucking was not obligated to secure workers’ compensation
coverage for Bobo because Golden Timber paid compensation to Bobo’s heirs.3 In Bevis,
the Court of Appeals stated that “so long as coverage is provided by either the subcontractor
or the contractor, recovery under workers’ compensation is the injured worker’s sole
remedy.” 856 So. 2d at 541 (emphasis added). The trial court, finding that the statutes
provided for an election of remedies in this case, granted summary judgment in favor of
Fowler Trucking, because Bobo’s “beneficiaries” received death benefits. The trial court
held that this precluded Lamar from asserting an independent tort action against Fowler
Trucking.
B. Court of Appeals Proceeding
¶6. The Court of Appeals affirmed the trial court’s grant of summary judgment in favor
of Fowler Trucking. The Court of Appeals, however, found that the trial court should not
have relied on Bevis “to find that the ‘up-the-line’ immunity in that case applied equally to
a subcontractor in a ‘down-the-line’ situation.” Lamar, 2006 Miss. App. LEXIS 249 at *24
3
While both the trial court and Court of Appeals found that Bobo’s “beneficiaries” or “heirs”
recovered death benefits, we hasten to point out that only one beneficiary, Lamar’s younger sister
Tracie, was paid dependant benefits as a result of Bobo’s death.
3
(Miss. Ct. App. 2006). The Court of Appeals stated, “[w]e do not find that Bevis can
automatically be applied to the ‘down-the-line’ situation.” Id.
¶7. The Court of Appeals found that Fowler Trucking had failed to secure workers’
compensation coverage and was not protected “down-the-line” by Golden Timber’s policy.
However, the Court of Appeals held that because Lamar’s younger sister elected to accept
the death benefits under the Act, Lamar’s sole remedy was under the Act and not through an
independent tort action.4 Lamar filed a Petition for Writ of Certiorari, which we granted.
DISCUSSION
I.
¶8. We apply “a de novo standard of review to the trial court’s grant of summary
judgment.” Moss v. Batesville Casket Co., 935 So. 2d 393, 398 (Miss. 2006). Our rules of
civil procedure require the trial court to grant summary judgment where “the pleadings,
depositions, answers to interrogatories and admissions on file, together with the affidavits,
if any, show that there is no genuine issue as to any material fact and that the moving party
is entitled to a judgment as a matter of law.” Miss. R. Civ. P. 56(c).
¶9. The movant bears the burden of demonstrating that no genuine issues of material fact
exist for presentation to the trier of fact, and the non-moving party must be given the benefit
of every reasonable doubt. Moss, 935 So. 2d at 398. “‘Issues of fact . . . are present where
one party swears to one version of the matter in issue and another says the opposite.” Id.
4
In a concurring opinion, joined by Griffis and Roberts, JJ., Judge Southwick explained his
view that Lamar’s tort action was prohibited not because an election was made to accept the death
benefits but because Fowler Trucking had secured coverage by paying Golden Timber for workers’
compensation coverage.
4
(quoting Tucker v. Hinds County, 558 So. 2d 869, 872 (Miss. 1990)). Additionally, we
apply the plain meaning of the statutes to the issues before this Court. See Walker v.
Whitfield Nursing Ctr., Inc., 931 So. 2d 583, 590 (Miss. 2006).
II.
¶10. While we agree with both the trial court and the Court of Appeals that Lamar is
precluded from suing in tort for the wrongful death of her father, our reason for this-
conclusion is materially different from those of both the trial court and the Court of Appeals.
As stated previously, the trial court found that Fowler Trucking failed to secure workers’
compensation coverage, but was nevertheless immune from suit because Golden Timber had
secured coverage. The trial court further found that Fowler Trucking was immune from suit
because Bobo’s beneficiaries elected the remedy of workers’ compensation. While reaching
the same result, the Court of Appeals reasoned differently. The Court of Appeals found that
Fowler was non-compliant with the Act and, therefore, the Act did not provide it immunity.
However, the Court of Appeals agreed that Lamar was precluded from suing in tort because
Bobo’s beneficiaries had elected their remedy under the Act by receiving workers’
compensation payments from Golden Timber. For different reasons, we affirm the trial
court’s grant of summary judgment and the judgment of the Court of Appeals.
¶11. The Court of Appeals correctly stated that “[t]he ultimate issue is whether Lamar is
statutorily prevented from pursuing a common law wrongful death action against Fowler.”
Lamar v. Fowler Trucking, 2004-CA-00280 at *9. An employee is statutorily prevented
from pursuing a common law wrongful death action in one of two ways. First, if it provides
workers’ compensation coverage to its employees by “securing payment of compensation,”
5
in compliance with section 71-3-7, then its employees are precluded from suing in tort
pursuant to section 71-3-9, which provides that workers’ compensation payments are the
exclusive remedy when the employer secures payment of compensation. Miss. Code Ann.
§§ 71-3-7, 71-3-9 (Rev. 2000).
¶12. Second, even if an employer fails to secure payment of compensation, in certain
circumstances, an employee may “elect” to proceed under the provisions of the Act in lieu
of maintaining an action at law for damages. See Miss. Code Ann. § 71-3-9. Once an
“election of remedies” is made, then the party electing to proceed under the provisions of the
Workers’ Compensation Act is precluded from suing in tort. In the case before us, we find
that Fowler Trucking complied with section 71-3-7 by “securing payment of compensation,”
and therefore, we need not address the issue of election of remedies.
III.
¶13. While both the trial court and the Court of Appeals focused on the
contractor/subcontractor relationship between Golden Timber and Lamar Trucking,
analyzing “up-the-line” and “down-the-line” immunity concepts, we find that analysis to be
unnecessary, as the issue of whether Fowler Trucking is immune from suit turns on statutory
language, that is, whether Fowler complied with section 71-3-7 by “secur[ing] the payment
to [its] employees . . . .”
¶14. Fowler Trucking argues that when workers’ compensation coverage is provided either
by the subcontractor or the contractor, recovery under workers’ compensation is the injured
worker’s sole remedy. This concept, occasionally labeled “down-the-line” immunity, is
applicable where it can be justified by statutory language. We find that Fowler Trucking’s
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compliance with the Act provides it the protection of the “exclusive remedy” provision. We
further find labeling the protection as “down-the-line” immunity is confusing and
unnecessary.
¶15. Pursuant to section 71-3-5, Fowler Trucking qualified as an “employer” because it had
“five (5) or more workmen or operatives . . . under any contract of hire.” Therefore, as an
employer, Fowler Trucking had an obligation to secure compensation for its employees
pursuant to section 71-3-7(d), which states in pertinent 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,[5 ] 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-(d) (Rev. 2000) (emphasis added). Thus, if Fowler Trucking
“secured such payment,” that is, if it took proper steps6 to provide for the payment of
workers’ compensation benefits, then it is immune from suit in tort pursuant to section 71-3-
9, which states that,
The liability of an employer to pay compensation shall be exclusive and in
place of all other liability of such employer to the employee . . . 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
5
This statutory concept is also applied to a subcontractor of a subcontractor. See Crowe v.
Brasfield & Gorrie Gen. Constr., 688 So. 2d 752, 757 (Miss. 1996).
6
In the case of a subcontractor, securing payment of workers’ compensation benefits may be
accomplished by either purchasing a workers’ compensation insurance policy or by providing funds
for the general contractor to purchase the coverage, so long as the coverage is actually secured. A
general contractor may secure payment of benefits by purchasing a policy, or by contractually
requiring its subcontractors to secure such coverage.
7
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.
Miss. Code Ann. § 71-3-9- (Rev. 2000). The Court of Appeals correctly noted that “[b]y the
language of the Act, immunity is available only to those employers who operate in
compliance with the Act.” Lamar, 2006 Miss. App. LEXIS 249 at *18. The Court of
Appeals went on to state that “the exclusivity framework has been extended by the
Mississippi Supreme Court to include those employers who may be considered ‘statutory
employers’ under section 71-3-7. This is the principal of ‘up-the-line’ immunity, and it has
become well-established in Mississippi law.” Lamar, 2006 Miss. App. LEXIS 249 at *19;
see Mosley v. Bowers, 224 Miss. 725, 80 So. 2d 819, 821 (Miss. 1955) (this Court extended
workers’ compensation immunity to a general contractor who was considered a statutory
employer of its subcontractor’s employees); Doubleday v. Boyd Constr. Co., 418 So. 2d 823,
826 (Miss. 1983) (finding that section 71-3-7 does not subject a general contractor to
common law liability if he required the subcontractor to have workers’ compensation
insurance); Richmond v. Benchmark Constr., Corp., 692 So. 2d 60, 63 (Miss. 1997) (finding
that an oral agreement between a general contractor and subcontractor that the subcontractor
would provide workmen’s compensation insurance was sufficient to extend workers’
compensation immunity to a general contractor).
¶16. We wish to point out that the immunity enjoyed by general contractors is not a gift
from this Court, nor is it an extra-statutory concept, but rather is granted by the Legislature
under certain statutorily-defined circumstances. For instance, this Court in Doubleday found
that the general contractor, Boyd, enjoyed the statutory immunity by “contractually requiring
8
[its subcontractor] to secure a policy of insurance on its employees.” 418 So. 2d at 827. The
Doubleday Court went on to state that the general contractor “‘secured’ compensation
insurance for the benefit of Doubleday within the meaning and purpose of the statute.” Id.
¶17. The critical question in today’s case is whether Fowler complied with the Act by
“securing the payment to his employees of the compensation payable under its provisions.”
Miss. Code Ann. § 71-3-7(d) (Rev. 2000). If so, Fowler Trucking is covered by the
exclusiveness of liability of section 71-3-9.
IV.
¶18. In determining whether Fowler complied with Miss. Code Ann. Section 71-3-7(d), we
turn to facts in the record before us, finding that Fowler did secure compensation as required
by the Act. The record indicates that Fowler Trucking hauled logs exclusively for Golden
Timber. Golden Timber obtained workers’ compensation insurance through the Mississippi
Loggers Association Self-Insured Fund. Deposition testimony of Carla Corbitt,7 the Rule
30(b)(6) representative of Golden Timber, indicated that Golden Timber deducted payments
for workers’ compensation insurance for Fowler Trucking’s employees from Fowler
Trucking’s gross pay. Additionally, Corbitt’s testimony indicated, supported by various
statements in the record from the Mississippi Loggers Association Self-Insured Fund, that
payment for “contract trucking” coverage was calculated at a rate of $7 per day per truck.
Corbitt stated that “the insurance was held out from Fowler Trucking each week. The
7
Corbitt is the daughter of Carlon Golden, the founder of Golden Timber. She started
working for Golden Timber in 1982 as a secretary and stated in her deposition that she has “taken
over” the office. Corbitt also served on the board of directors for Fowler Trucking from 1995 until
1997.
9
premium was $7 per day per truck, which was deducted from the gross wages at the end of
the week.” When asked who figured the premium, Corbitt answered, “[m]ost of the time, I
did.” Corbitt stated that instead of calculating the premium by employee names, Golden
Timber calculated the premiums by listing the truck that the Fowler Trucking employee was
driving.
¶19. Thomas Fowler, president of Fowler Trucking, also testified during his deposition that
workers’ compensation premiums were paid by Fowler Trucking for company employees
through deductions at a rate of $7 per truck per day. In addition, Fowler testified that to his
understanding, workers’ compensation premiums were always deducted from the gross
proceeds received from Golden Timber. Furthermore, the record contains a Certificate of
Liability Insurance which names Golden Timber as the insured and Fowler as an additional
insured. Finally, following the death of Bobo, reports of injury (MWCC Form B-3) were
filed on behalf of Bobo with the Mississippi Workers’ Compensation Commission and, as
a result, the Mississippi Loggers Association Self-Insured Fund paid dependant benefits
totaling $6,725.60 to Bobo’s youngest daughter, Tracie, until she reached the age of 23.
¶20. We find, therefore, that sufficient evidence exists in the record to show that Fowler
Trucking complied with the Act by “securing coverage” for Bobo, its employee. Because
we find that Fowler Trucking did so, we need not address whether Bobo’s beneficiaries are
precluded from suing in tort because they elected to receive compensation benefits.
10
CONCLUSION
¶21. We find that Fowler Trucking complied with the plain language of the Act by
“securing compensation,” for its employees and, as a result, Lamar is precluded from
pursuing an action in tort against Fowler Trucking. Therefore, the trial court did not err in
granting summary judgment in favor of Fowler Trucking. Furthermore, the judgment of the
Court of Appeals is affirmed.
¶22. AFFIRMED.
SMITH, C.J., WALLER, P.J., EASLEY, CARLSON AND RANDOLPH, JJ.,
CONCUR. DIAZ, P.J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED
BY GRAVES, J. LAMAR, J., NOT PARTICIPATING.
DIAZ, PRESIDING JUSTICE, DISSENTING:
¶23. Under the reasoning of the majority, no subcontractor in Mississippi ever has to secure
workers’ compensation insurance. Because no such exemption is present in the Workers’
Compensation Act, and because the majority today drafts a dramatic new expansion into the
law, I must respectfully dissent.
I. The Three Methods of Complying with the Act.
¶24. Any review of a case under the Act must necessarily start with the wording of the
statutes, which we then apply to the facts of the case. The majority correctly concludes that
Fowler Trucking is covered under Section 71-3-5, which mandates that all employers with
five or more employees must have workers’ compensation insurance. Yet the opinion wavers
on the concept from that point onwards, crafting a “good enough” standard that is not present
in the statutes. Partly to blame is our unnecessarily complicated case law that has judicially
rewritten the Act.
11
¶25. The Legislature saw fit to explain exactly what constitutes “securing coverage” for
the purposes of the Act in Section 71-3-75 of the Code. As the Court of Appeals explained,
this code section “provides three mechanisms for security of payment: (1) by a carrier
authorized to insure such liability in this state; (2) by exemption from insuring pursuant to
authority from the commission; (3) and by self-insuring or pooling liabilities with other
employers engaged in a common type of business under rules and regulations prescribed by
the commission.” Lamar v. Thomas Fowler Trucking, Inc., 2006 Miss. App. LEXIS 249,
*17 n.4 (Miss. Ct. App. 2006); see Taylor v. Crosby Forest Products Co., 198 So. 2d 809,
811 (Miss. 1967) (“The requirement that the employer must secure payment of compensation
means that he must have in effect an insurance policy complying with the workmen’s
compensation act, or must qualify as a self insurer.”) (internal citation and quotation
omitted). There are, then, three ways one complies with the Act: by getting a compliant
insurance policy, by obtaining exemption, or by self-insuring.
¶26. Fowler Trucking admitted it did not secure coverage through the first two means;
instead, it argues that it indirectly secured coverage through the corporation it contracted for,
Golden Timber, effectively “self-insuring.” As the Court of Appeals stated it, “Fowler
Trucking argues that . . . the subcontractor is entitled to immunity from suit because it was
actually paying the general contractor for the workers’ compensation coverage of its
employees.” Lamar, 2006 Miss. App. LEXIS 249, at *9. Yet the only method of
compliance left open to Fowler Trucking, the third method of self-insuring defined in detail
in Section 71-3-75, must be met exactingly. In full, the requirement states the following:
12
(3) Pooling of liabilities. The commission may, under such rules and
regulations as it prescribes, permit two (2) or more employers engaged in a
common type of business activity or pursuit, or having other reasons to
associate, to enter into agreements to pool their liabilities under this section for
the purpose of qualifying as group self-insurers, and, in conjunction therewith,
to enter into agreements to pool any other liabilities to their employees, and
each employer member of such approved group shall be classified as a self-
insurer. A self-insured group under this section shall be comprised of employer
members of the same bona fide trade association or trade group. Such trade
association or trade group shall be domiciled in the State of Mississippi, shall
have been in existence for five (5) or more consecutive years as of the date of
application for an approved group and shall not be comprised solely of
employer members who are affiliates of a person possessing controlling
interest in such affiliates.
Miss. Code Ann. § 71-3-75 (3) (Rev. 2000). There is no evidence Fowler Trucking complied
with these procedures.
¶27. The majority concerns itself with the relative usefulness of “down-the-line” or “up-
the-line” immunity, distinctions which I agree are unnecessary and confusing; further, they
appear to be judicial interpretations grafted onto the very explicit requirements of the Act as
written by the Legislature. In my view, because Fowler Trucking already qualified as an
“employer” under the Act, any discussion or analysis of general contractors, subcontractors,
or “down-the-line” or other immunity is unnecessary, as the Act is clear on what is required
of an employer. As the Court of Appeals noted, and what should go without saying, “[i]f the
subcontractor employs five or more employees, it must secure workers’ compensation
coverage.” Lamar, 2006 Miss. App. LEXIS 249, at *26. Regardless of whether Fowler
Trucking was a subcontractor at this particular worksite, any employer under the Act must
have met one of the three methods of compliance.
13
¶28. Ultimately, this case revolves around one key question. Did Fowler Trucking, as an
employer, conform to the requirements of Section 71-3-75, which explains the three ways
of compliance? The answer, as the Court of Appeals acknowledged, is simply “no.” See
Lamar, 2006 Miss. App. LEXIS 249, at *17 n.4. It is clear from the facts of this case that
Fowler Trucking failed to secure workers’ compensation insurance as required by statute
because it did not either: 1) get insurance directly; (2) obtain an exemption; or (3) self-insure
or pool liabilities as laid out in the Act or the Workers’ Compensation Commission
regulations.
¶29. Fowler attempted to argue that “where any employer secures payment of
compensation, all employers are immune.” Lamar, 2006 Miss. App. LEXIS 249, at *27-28.
No section of the Act allows such a result. Under this reasoning, the very heart of the
Act–requiring employers with five or more employees to secure insurance–is gutted. As the
Court of Appeals reasoned, “we must presume that, due to the absence of language granting
immunity to a party such as Fowler Trucking, it was not the legislature’s intent to award such
immunity.” Id. at *33.
¶30. Fowler Trucking wishes to hide from the clear requirements of the Act under a cloak
of immunity drawn from the complicated and confusing precedent of this Court.
Nonetheless, it is an employer and failed to follow one of the three methods of compliance
with the Act. It is imperative that we return to a plain reading of the Act and abandon the
ongoing “judicial rewrite” that stretches back decades.
¶31. The majority is correct when it notes that the immunity of employers is not a gift, but
a grant from the Legislature. More precisely, it is also a trade-off of rights: the employee
14
gives up his or her right to maintain suit for insurance, even as the employer must pay for the
insurance while gaining assurance of immunity. Yet the majority’s opinion today is a gift
not granted by the Legislature. Under its reasoning, and contrary to the intent of the
Legislature and the plain language of the Act, some employers will not have to secure
insurance.
¶32. Because Fowler Trucking failed to secure coverage or exemption under the Act, its
statutory immunity is sacrificed; accordingly, I would allow Ms. Lamar to pursue a suit in
court for the loss of her father.
II. The Election of Remedies.
¶33. I conclude, as did the Court of Appeals, that Fowler Trucking was not immune to suit.
I disagree with the Court of Appeals that Ms. Lamar has no right to proceed in the legal
system because she has already elected to obtain benefits under the Act.
¶34. Section 71-3-9 of the Act provides that when an employer fails to secure payment of
compensation as required by the workers’ compensation statutes, “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.” (emphasis added). The Act does not define the term “legal
representative,” and this Court has not addressed the precise meaning of this term in
connection with § 71-3-9. However, we have examined the term in the context of a previous
version of our non-resident motorist statute, Miss. Code Ann. § 13-3-63 (Rev. 2002).
¶35. In Hill v. James, a Louisiana resident was injured in an automobile accident on a
Mississippi highway while riding as a passenger with another Louisiana resident. 252 Miss.
15501, 175 So. 2d 176 (1965). We carefully analyzed the term “legal representative,” noting
that:
The following words ‘or other legal representative of the estate’ . . . in our
opinion, likewise signify a person or persons acting for the benefit of another
in a legal or representative capacity such as an administrator cum testamento
annexo, administratrix, executrix, administrator de bonis non, administrator de
bonis non cum testamento annexo, and others in a like position or class distinct
from one as an individual or one in an individual capacity.
Id. at 179. In accordance with this finding, we found that the statute did not “authorize an
action to be brought against the widow or minor children of a nonresident decedent in their
individual capacities.” Id. at 178.
¶36. We more recently sought to ascertain the meaning of the term “representative,” in
determining “whether a Mississippi trial court had personal jurisdiction over Louisiana
residents pursuant to the long-arm statute.” Sealy v. Goddard, 910 So. 2d 502, 506 (Miss.
2005). Finding Hill to be instructive, this Court found that “service of process could only
be made upon the ‘nonresident executor, administrator, receiver, trustee or any other selected
or appointed representative’” of the decedent. Id. at 511. We found that “[c]learly, none of
these statutory terms apply to the individual Sealy heirs.” Id.
¶37. In this case, Mr. Bobo’s youngest daughter received the funds; she was a minor at the
time. In applying the precedent of Hill and Sealy to the language of Section 71-3-9, the
payment made to the minor does not result in an election of remedies by Mr. Bobo’s legal
representative, his other daughter, Ms. Lamar. According to the statute, when an employer
covered by the Act fails to secure coverage, one of two persons can make the election to
receive compensation benefits in lieu of suing in tort. That is, the “injured employee or his
16
legal representative in case death results from the injury.” Miss. Code Ann. § 71-3-9 (Rev.
2000). Because Mr. Bobo’s injuries ultimately caused his death, only his legal representative
could have waived the right to bring suit by electing to claim compensation under the Act.
¶38. Should the legal representative of the decedent elect compensation benefits when an
employer fails to comply with the Act, then the legal representative has effectively “elected
the remedy” according to the Act. However, Section 71-3-9 does not license one of the
decedent’s dependent children to settle a claim on behalf of the estate or the wrongful death
beneficiaries without an appropriate proceeding before a court, such as the opening of an
estate by a personal representative or the initiation of legal proceedings on behalf of the
wrongful death beneficiaries. Therefore, contrary to the opinion of the trial court and Court
of Appeals, in my reading Ms. Lamar did not elect compensation under the Act when her
younger sister received dependent benefits as a result of their father’s death.
¶39. For the reasons above, I respectfully dissent from the majority. I would reverse the
Court of Appeals and the trial court, finding that Fowler Trucking was not immune to suit
and that Ms. Lamar is eligible to pursue her suit in the Mississippi court system.
GRAVES, J., JOINS THIS OPINION.
17