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ESTATE OF JIMMY MORRIS, THELMA MORRIS, ADMINISTRATRIX v. W. E. BLAIN & SONS

AUGUST 19, 1987

ESTATE OF JIMMY MORRIS, THELMA MORRIS, ADMINISTRATRIX
v.
W. E. BLAIN & SONS, INC. and TRAFFIC CONTROL PRODUCTS, INC., JOINTLY AND SEVERALLY



BEFORE ROY NOBLE LEE, P.J., DAN LEE AND GRIFFIN, JJ.

DAN LEE, J., FOR THE COURT:

Thelma Morris, Administratrix of the estate of Jimmy Morris, appeals the entry of summary judgment granted against the estate on behalf of W. E. Blain & Sons, Inc. and Traffic Control Products, Inc., defendants below. Ms. Morris brought suit on behalf of the estate seeking $1.5 million in actual damages and $1.5 million in punitive damages for wrongful death under the authority of Miss. Code Ann. 11-7-13 (1972 & Supp. 1986).

The decedent Morris died as a result of injuries suffered when he was hit by a car while working construction on a highway project in Hinds County. Blain & Sons was the prime contractor on the project, and Traffic Control Products was a subcontractor, allegedly responsible for providing traffic and warning signs. Morris was employed by A & B Paint Striping, Inc., another subcontractor.

 The trial court granted summary judgment in favor of Blain & Sons and Traffic Control Products on the basis of the exclusive remedy provision of the Workers' Compensation law, Miss. Code Ann. 73-3-9 (1972), and this Court's decision in Doubleday v. Boyd Construction Co., 418 So.2d 823 (Miss. 1982).

 ASSIGNMENT OF ERRORS I & II

 THE LOWER COURT ERRED IN GRANTING THE MOTION FOR SUMMARY JUDGMENT OF THE APPELLEES, TRAFFIC CONTROL PRODUCTS, INC., AND W. E. BLAIN & SONS, INC., RULING THAT THE EXCLUSIVE REMEDY PROVISION OF THE WORKERS' COMPENSATION ACT BARRED ANY RECOVERY IN THIS, A WRONGFUL DEATH ACTION.

 For the reasons detailed below, we affirm the summary judgment granted in favor of W. E. Blain & Sons, Inc., but reverse as to Traffic Control Products, Inc.

 I. FACTS

 July 12, 1984, Jimmy Morris was struck and killed by a car while working near the Bolton interchange of I-20 in Hinds County. He was 39 years old. At the time of his death, Morris was admittedly working in the course and scope of his employment with A & B Paint Striping Co. This day he was part of a two-man team measuring distances for painting lane boundaries and for placement of reflectors marking the lanes.

 Morris and a co-worker, Michael Taylor, were working in the area where the traffic merges from the acceleration ramp into the westbound lane of I-20 at the Bolton interchange.

 Morris was struck by a motorist proceeding down the acceleration ramp.

 A & B Paint Striping Co. (hereinafter A & B) was a subcontractor on a highway project on which W. E. Blain & Sons, Inc. (hereinafter Blain & Sons) was the prime contractor. Traffic Control Products, Inc. (hereinafter Traffic Control) was another subcontractor.

 Ms. Morris alleged that both defendants owed a duty to provide traffic warnings, the breach of which proximately caused Morris' death.

 The extent of Blain & Sons' and/or Traffic Control's duty to post signs or provide other warnings to motorists to protect A & B's workers is disputed. Neither duty nor breach thereof is at issue on appeal, however, since the trial court held that Morris' estate could not recover from either defendant because of the exclusive remedy provision of the Workers' Compensation law.

 The contracts between both subcontractors and Blain & Sons required A & B and Traffic Control to provide workers' compensation coverage for their respective employees. There is no dispute that both A & B and Traffic Control had workers' compensation coverage on July 12, 1984, the day of the accident.

 Morris' estate received a $100,000 settlement from the insurer of the driver whose automobile struck and killed Morris. Contemporaneous with this settlement, Ms. Morris subsequently filed suit on behalf of the estate against these defendants. After preliminary discovery, defendants independently sought and were granted summary judgment on the basis of Miss. Code Ann. 71-3-9 ...


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