Washington v. TEM's Junior, Inc.
| Docket Number: | 2006-CA-01928-COA | |
| Court of Appeals: |
Opinion Link Opinion Date: 04-29-2008 Opinion Author: CHANDLER, J. Holding: Affirmed |
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| Additional Case Information: |
Topic: Wrongful death - Workers’ compensation - Secure payment of compensation - Section 71-3-9 Judge(s) Concurring: KING, C.J., LEE AND MYERS, P.JJ., IRVING, GRIFFIS, BARNES, ISHEE, ROBERTS AND CARLTON, JJ. Procedural History: Summary Judgment Nature of the Case: CIVIL - WRONGFUL DEATH |
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| Trial Court: |
Date of Trial Judgment: 09-29-2006 Appealed from: NOXUBEE COUNTY CIRCUIT COURT Judge: James T. Kitchens, Jr. Disposition: SUMMARY JUDGMENT ENTERED FOR APPELLEE Case Number: 04-137 |
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| Party Name: | Attorney Name: | |||
| Appellant: | LINDA WASHINGTON, INDIVIDUALLY AND ON BEHALF OF THE WRONGFUL DEATH BENEFICIARIES OF JERRY SANDERS, DECEASED AND THE ESTATE OF JERRY SANDERS |
JAMES C. PATTON,
DAVID OWENS |
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| Appellee: | TEM'S JUNIOR, INC. D/B/A SHELL FOOD MART | TIMOTHY DALE CRAWLEY |
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| Topic: | Wrongful death - Workers’ compensation - Secure payment of compensation - Section 71-3-9 |
| Summary of the Facts: | Linda Washington, individually and on behalf of the wrongful death beneficiaries of Jerry Sanders, commenced a wrongful death action against Tem's Junior, Inc. Washington alleged that Sanders died from injuries he sustained from slipping and falling in grease that, as the result of negligence, was present on the ground outside of the convenience store. Tem's Junior filed a motion for summary judgment, asserting that Sanders was an employee of Tem's Junior and, therefore, the beneficiaries' exclusive remedy was under the Mississippi Workers' Compensation Act. The trial court granted summary judgment in favor of Tem's Junior, and Washington appeals. |
| Summary of Opinion Analysis: | Washington argues that Tem's Junior treated Sanders as an independent contractor, and it did not secure payment of compensation for him as required for employees by the Workers' Compensation Act. Section 71-3-9 provides that an employer that has secured payment of compensation for its employees in compliance with section 71-3-7 enjoys immunity from suit in tort for an employee's injury or death. An employer that has failed to secure payment of compensation as required the workers’ compensation chapter lacks immunity and an injured employee may elect to pursue either statutory workers' compensation benefits or an action at law. While Washington recognizes that Tem's Junior had a workers' compensation insurance carrier, she argues that Tem's Junior failed to “secure payment of compensation" because Sanders was not listed as an employee on the payroll or on the employee lists which were annually provided to the carrier, Tem's Junior did not prove that it filed the first report of injury form, and Tem's Junior has not made any payments mandated by the Act for Sanders's medical bills or funeral expenses. The prerequisite for immunity that the employer "secure payment of compensation" does not mean that the employer must timely inform the Commission of an employee's injury or ensure that a particular employee is paid the benefits to which he is entitled under the Act. Rather, the requirement that the employer "secure payment of compensation" means that the employer must have in effect a workers' compensation insurance policy or be a qualified self-insurer. Washington does not dispute that Tem's Junior had workers' compensation coverage in effect for its employees at the relevant time. The record sufficiently evinces that Tem's Junior did secure payment of compensation to its statutory employees as required by the Act, and therefore, it was immune from suit pursuant to section 71-3-9. |
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