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ROBERT LUCKETT v. MISSISSIPPI WOOD INC. AND THE WESTERN CASUALTY AND SURETY CO.

NOVEMBER 27, 1985

ROBERT LUCKETT
v.
MISSISSIPPI WOOD INC. AND THE WESTERN CASUALTY AND SURETY CO.



EN BANC

PRATHER, JUSTICE, FOR THE COURT:

The question for review is whether a circuit court has jurisdiction to entertain an employee's claim against his employer and its compensation carrier for bad faith and malicious refusal to pay workers' compensation benefits.

This appeal follows the decision of the Circuit Court of Leake County granting a motion to dismiss for lack of subject matter jurisdiction in an action brought by Robert Luckett against his employer, Mississippi Wood, Inc. and the Western Casualty and Surety Company, its workers' compensation insurance carrier. Luckett assigns as error the award of the motion to dismiss.

 I.

 On or about October 1, 1981, Luckett, while employed by Mississippi Wood, Inc., picked up a bundle of wood with a loader. The cable which secured the wood came unhooked, and when Luckett tried to secure the load, the wood fell injuring his legs. Luckett tried unsuccessfully to return to work and alleges that he is disabled for life as a result of the injury. Robert Luckett alleges that Mississippi Wood, Inc., had actual knowledge that he had sustained an on-the-job injury almost immediately. Mississippi Wood, however, filed no notice of such injury with the Mississippi Worker's Compensation Commission until June or July of 1982. Luckett further claims that his employer did not advise him that it would furnish him with medical treatment until his workers' compensation claim was filed and despite same having been demanded, the employer had not furnished Luckett with any compensation benefits whatsoever. Luckett filed no motion to controvert with the Mississippi Worker's Compensation Commission until May 3, 1982.

 II.

 In count 1 of his complaint Luckett claims and asserts an intentional tort, charging his employer and its carrier with bad faith refusal to honor their obligations under the compensation act, entitling Luckett to general and punitive damages.

 The lower court held that the exclusivity provision of the Mississippi Compensation Act, Miss. Code Ann. 71-3-9 (1982) precludes the plaintiff's action as set forth in Taylor v. United States Fidelity & Guaranty Co., 420 So. 2d 564 (Miss. 1982). However, in Southern Farm Bureau Casualty Ins. v. Holland, 469 So. 2d 55 (Miss. 1984), a case decided since the hearing of the case sub judice, this Court held that the exclusivity provision of the Workers' Compensation Act does not bar an action by an injured employee against a carrier for an independent, intentional tort.

 Miss. Code Ann. 71-3-9 (1972), the exclusivity of remedy provision, covers only "liability . . . to the employee . . . on account of such injury or death . . ."

 In Taylor this Court stated that 71-3-9 is limited to cases where the injured worker attempts to sue the carrier for negligent refusal to pay. The Taylor record alleges no "intentional" tort, as is present in the pleadings of the case sub judice.

 The liability sought in Holland derived from the independent and allegedly intentional, tortious conduct of Farm Bureau in refusing to pay benefits owing under the Mississippi Workers' Compensation Act without an arguable basis therefor and, did not arise from the on-the-job injury suffered by the plaintiff.

 In the case sub judice, the pleadings allege a willful failure to tender benefits to the plaintiff knowing his claim to be valid, and a willful and bad faith use of unequal bargaining position of the parties to effect economic gain. We consider this allegation in view of the fact that Mississippi Wood and its carrier became obligated in law to begin the payment of compensation two weeks after it learned of the injury. Miss. Code Ann. 71-3-37 (1) and (2) (1972). It is this duty employer and carrier are said to have breached in bad faith.

 This Court is of the opinion that in this form, the pleadings insofar as Count I is concerned are sufficient to survive a motion for failure to state a claim upon which relief may be granted. Rules 12 (b)(6) and 8 (a)(1), Miss. R. ...


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