Dustin Ray Rhodes vs Bamaco, Inc.

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
Nos. 10-15364, 10-15485 ELEVENTH CIRCUIT
Non-Argument Calendar APRIL 27, 2011
________________________ JOHN LEY
CLERK
D.C. Docket No. 1:08-cv-00523-CG-N
DUSTIN RAY RHODES,
llllllllllllllllllllllllllllllllllllllll Plaintiff - Appellant,
versus
PAUL & LINDA DAVIS,
d.b.a. P & L Construction Company,
llllllllllllllllllllllllllllllllllllllll Defendant,
BAMACO, INC.,
llllllllllllllllllllllllllllllllllllllll Defendant - Appellee.
________________________
Appeals from the United States District Court
for the Southern District of Alabama
________________________
(April 27, 2011)
Before WILSON, PRYOR and BLACK, Circuit Judges.
PER CURIAM:
Dustin Ray Rhodes appeals the summary judgment in favor of Bamaco, Inc.,
and against Rhodes’s complaint of violations of the Mississippi Workers’
Compensation Act and of negligence and wantonness. The district court ruled that
Rhodes’s claim under the Workers’ Compensation Act was untimely and that his
tort claims were barred by the Workers’ Compensation Act. The district court
later awarded Rhodes his attorney’s fees and costs because Bamaco had failed to
produce its workers’ compensation insurance policy during the discovery period,
and Bamaco cross-appeals that sanction. We affirm.
Bamaco is a general contractor that manages disaster-related work. After
Hurricane Katrina struck the Gulf Coast in August 2005, Bamaco entered a
contract to remove debris in the State of Mississippi, and Bamaco subcontracted
the physical labor to P&L Construction Company and its subcontractors. Rhodes
was hired by P&L or Bamaco to perform labor for the Katrina project. According
to Rhodes, “within hours of beginning work” on the project, he was electrocuted,
fell, and broke his foot.
On March 9, 2006, Rhodes applied for workers’ compensation benefits with
the Mississippi Workers’ Compensation Commission. Rhodes stated on his
petition to contravert that he was an employee of P&L, not Bamaco. On
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December 22, 2006, an administrative judge dismissed Rhodes’s petition.
On September 15, 2008, Rhodes filed in the district court a complaint
against P&L and Bamaco to recover disability benefits and medical expenses.
Rhodes alleged that the companies had “denied coverage” for worker
compensation and had negligently and wantonly failed to “maintain a safe working
environment” or “to properly train and supervise their employees.” Rhodes sought
compensatory and punitive damages.
The district court dismissed P&L from the action because Rhodes failed to
provide proof of timely service, and Bamaco answered with a denial that it had
employed Rhodes. Bamaco later moved for summary judgment and argued that
Rhodes’s complaint about workers’ compensation benefits and negligence was
untimely and that he was barred from suing in tort for his injuries.
The district court granted summary judgment in favor of Bamaco. The
district court ruled that Rhodes’s complaint was untimely and that his right to
compensation under the Workers’ Compensation Act barred him from recovering
in tort. The district court invited Rhodes to move for sanctions because Bamaco
had failed to disclose information about its workers’ compensation insurance in its
initial and supplemental responses to discovery requests.
Rhodes moved for reconsideration and for sanctions against Bamaco, and
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the district court granted Rhodes partial relief. The district court rejected
Rhodes’s argument that Bamaco had failed to “secure payment” of insurance as
required by the Workers’ Compensation Act, but the district court granted
Rhodes’s request for sanctions. The district court ruled that Bamaco should have
disclosed earlier that it had workers’ compensation insurance when Rhodes had
been injured and that Rhodes had “incur[red] attorney’s fees and expenses that
could have been avoided if Bamaco had divulged the existence of the policy.”
The district court awarded Rhodes $88,722.50 in attorney’s fees and $7,135.53 in
costs.
Rhodes was not entitled to recover workers’ compensation benefits from
Bamaco because he failed to apply timely for those benefits. Under the
Mississippi Workers’ Compensation Act, “if no payment of compensation . . . is
made and no application for benefits filed with the commission within two years
from the date of the injury or death, the right to compensation . . . shall be barred.”
Miss. Code Ann. § 71-3-35(1). “[A]n ‘application for benefits’ as referenced in . .
. Section 71-3-35(1) . . . means a petition to controvert, or some variation of a
petition or motion, filed with the Workers’ Compensation Commission by the
claimant.” Tupelo Public Sch. Dist. v. Parker, 912 So. 2d 1070, 1072 (Miss. Ct.
App. 2005). Bamaco never compensated Rhodes for his injuries, and Rhodes
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never filed a petition with the Commission to recover workers’ compensation
benefits from Bamaco.
Rhodes argues that the two-year limitations period was tolled because
Bamaco failed to notify the Workers’ Compensation Commission of Rhodes’s
injury and Bamaco withheld information about its insurance, but his arguments
fail. An employer is required under Mississippi law to file an injury report with
the Commission within ten days of an injury that has caused an employee to miss
more than five days of work, Miss. Code Ann. § 71-3-67, but “the failure of an
employer to file notice, alone, is not sufficient to require estoppel,” Nicholson v.
Int’l Paper Co., 51 So. 3d 995, 998 (Miss. Ct. App. 2010); see Prentice v.
Schindler Elevator Co., 13 So. 3d 1258, 1260 (Miss. 2009). Although the statute
of limitation may be tolled if an “employer misrepresents the nature and existence
of its coverage and the employee relies on such statements,” Holbrook ex rel.
Holbrook v. Albright Mobile Homes, Inc., 703 So. 2d 842, 844 (Miss. 1997),
Rhodes failed to introduce any evidence that he refrained from applying for
workers compensation benefits based on a misrepresentation by Bamaco during
the limitations period.
Rhodes argues that his complaint of negligence was timely, but we need not
address that argument because Rhodes’s complaints about negligence and
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wantonness are both barred under the Workers’ Compensation Act. In
Mississippi, an employer is required to “secure the payment to his employees of
the compensation payable under [the] provisions” of the Act, Miss. Code Ann. §
71-3-7, by either “hav[ing] in effect a workers’ compensation insurance policy or
be[ing] a qualified self-insurer,” Washington v. Tem’s Junior, Inc., 981 So. 2d
1047, 1051 (Miss. Ct. App. 2008) (citing Miss. Code Ann. § 71-3-75). Bamaco
established that it had “secured payment” by obtaining workers’ compensation
insurance in Mississippi from Twin City Fire Insurance Company and that Twin
City Fire Insurance had a valid “Mississippi Privilege License” on the date that
Rhodes had been injured. Because Bamaco had secured payment for its
employees, its “liability . . . to pay compensation . . . [was] exclusive and in place
of all other liability” to Rhodes, Miss. Code Ann. § 71-3-9, and guaranteed
Bamaco “immunity from suit in tort for [Rhodes’s] injur[ies],” Tem’s Junior, 981
So. 2d at 1050.
Rhodes argues that Bamaco failed in three ways to “secure payment” as
required by section 71-3-7, but we disagree. First, Rhodes argues that Bamaco’s
insurance policy provided worker’s compensation coverage only in Alabama, but
the policy included an “other state” endorsement that provided identical coverage
to Bamaco’s employees in Mississippi. Second, Rhodes argues that Bamaco failed
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to give its insurer notice that it was working in Mississippi, but Bamaco presented
undisputed evidence that it “notified its insurer via telephone that it was working
in Mississippi.” Third, Rhodes argues that Bamaco failed to register its policy
with the Mississippi Workers’ Compensation Commission, but Rhodes fails to cite
any authority that makes the guarantee of immunity under section 71-3-9
contingent on registration. Bamaco “secured payment” for its employees in
Mississippi, and “[t]he prerequisite for immunity” did not require Bamaco to
“timely inform the Commission of an employee’s injury or ensure that a particular
employee [was] paid the benefits to which he is entitled under the Act.” Tem’s
Junior, 981 So. 2d at 1050–51. After Bamaco “‘secure[d] payment of
compensation’ through a workers’ compensation insurance policy,” its “statutory
responsibility to pay workers’ compensation benefits bec[ame] the responsibility
of the carrier.” Id. at 1051.
Bamaco cross-appeals the sanction for its failure to disclose earlier its
workers’ compensation insurance, but the district court was entitled to sanction
Bamaco for withholding information about its insurance policy. See Fed. R. Civ.
P. 37(c)(1)(A). Bamaco argues that it was substantially justified in failing to
disclose its policy, but Rhodes alleged that he was an employee of Bamaco and “a
party must” produce in its initial disclosures “any insurance agreement under
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which an insurance business may be liable to satisfy all or part of a possible
judgment in the action or to indemnify or reimburse for payments made to satisfy
the judgment,” Fed. R. Civ. P. 26(a)(1)(A)(iv) (emphasis added). Rhodes also was
harmed by Bamaco’s misrepresentations. See Fed. R. Civ. P. 37(c)(1). Based on
Bamaco’s statements in its disclosures that it did “not have insurance for the
claims asserted against it in this action,” Rhodes “continued to pursue a remedy
(the civil action) which was not available.” Rhodes incurred attorney’s fees and
expenses unnecessarily, and Bamaco does not challenge as unreasonable the
amount of the sanction. The district court rejected Rhodes’s request to exclude
evidence of the insurance policy, see id., because Bamaco disclosed two weeks
before discovery ended that it “had a commercial general liability policy in effect
at the time of the Hurricane Katrina Gulfport, Mississippi job” and Rhodes did not
request an extension of time to investigate the policy. “[W]e cannot say that we
are left with the definite and firm conviction that the district court committed a
clear error of judgment in” deciding to award attorney’s fees and expenses “after
its weighing of the relevant factors.” In re Plywood Antitrust Litig., 655 F.2d 627,
638 (5th Cir. 1981).
We AFFIRM both the summary judgment against Rhodes and the sanction
against Bamaco.
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