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ROBERT FALLS, ET AL. v. MISSISSIPPI POWER & LIGHT COMPANY

AUGUST 28, 1985

ROBERT FALLS, ET AL.
v.
MISSISSIPPI POWER & LIGHT COMPANY



BEFORE ROY NOBLE LEE, ROBERTSON and SULLIVAN

ROY NOBLE LEE, PRESIDING JUSTICE, FOR THE COURT:

The Circuit Court of Holmes County granted a summary judgment in favor of Mississippi Power & Light Company on a wrongful death claim filed by Robert Falls and other family members on the account of the electrocution death of Henry Lee Falls. The Falls have appealed to this Court and assign the following error in the lower court's decision:

The lower court committed reversible error in holding that, as a matter of law, Mississippi Power & Light Company was the statutory employer of appellants' decedent, and, as such, appellants exclusive remedy is a workmen's compensation claim.

 The complaint charged that on August 26, 1982, the deceased, while employed by the Deviney Company, was trimming and cutting the tops from pine trees under and around appellee's high voltage power lines on the Natchez Trace Parkway near Port Gibson, Mississippi, pursuant to his instructions; that one of the tree tops fell upon the appellee's power lines, resulting in deceased's electrocution and death; and that the appellee negligently installed and maintained its power lines, which negligence proximately caused or contributed to Falls' death. The complaint further charged that the Deviney Company was an independent contractor; that decedent was an employee of the Deviney Company; and that the negligence of appellee caused decedent's death.

 Appellee answered and denied that it was negligent, it admitted that Deviney is an independent contractor and that decedent was Deviney's employee. Appellee also stated four affirmative defenses and filed an amended answer alleging that appellee was the statutory employer of decedent and that appellants' exclusive remedy is a workmen's compensation claim. This is the sole question involved in the appeal.

 Appellants concede that, if appellee was decedent's statutory employee, then appellee is immune from third party liability, since under such a relationship, appellee would have a duty to provide for workmen's compensation, either through itself or a subcontractor.

 The National Park Service granted a special use permit to appellee for the period March 1, 1976, through December 31, 1985, over the Natchez Trace Parkway, for the purpose of providing electrical service to its customers through distribution and transmission lines in the area served by Mississippi Power & Light Company, subject to certain conditions and restrictions. Appellee was permitted to keep its right-of-way clear of trees, brush and stumps, and, in

 doing so agreed to abide by requirements of the special use permit.

 Appellee contends, and so persuaded the lower court, that under the special use permit it became a contractor and, in this case, a prime contractor, or owner contractor; that the Deviney Company was its subcontractor; and that, therefore, the decedent became its statutory employee, which conferred immunity upon it from a third party common-law action.

 The contract executed between appellee and the Deviney Company contained the following language under Paragraphs (1) and (4):

 1. Contractor agrees, at his sole cost and expense, to perform all the labor and services and furnish all the tools and equipment necessary to complete in good, substantial, workmanlike and approved manner, the work hereinafter specified and referred to, and to perform the same in accordance with plans and specifications furnished by the Owner and conditions and provisions of this agreement hereinafter mentioned.

 * * *

 4. Contractor shall effect, maintain and furnish evidence of insurance satisfactory to the owner in the following minimum amounts:

 (a) Workmen's Compensation Insurance for operations in the State of Mississippi, including Employers Liability Insurance in ...


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