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A. W. STEVENS & BURIE STEVENS v. FMC CORP.

NOVEMBER 12, 1987

A. W. STEVENS & BURIE STEVENS
v.
FMC CORP., ET AL



BEFORE HAWKINS, P.J., PRATHER AND ZUCCARO, JJ.

PRATHER, JUSTICE, FOR THE COURT:

This appeal presents important questions concerning the Mississippi Workers' Compensation Act. Of major significance to this case is this Court's interpretation of the exclusivity provisions of this Act.

This case involves two claims for damages in connection with alleged intentional misconduct on the part of the appellee, FMC Corporation. The claim of the appellant, A. W. Stevens, is for his injuries directly arising out of the wrong committed by the appellee, FMC Corporation, his former employer, and the claim of the appellant, Burie Stevens, wife of Stevens, involves her derivative action for the loss of consortium. In opposition to the two cases being dismissed in the trial court on motions for summary judgment, the appellants appeal and assign as error:

 (1) The circuit court erred in granting summary judgment in favor of the appellee, against the appellant, A. W. Stevens.

 (2) The circuit court erred in granting summary judgment in favor of the appellee, against the appellant, Burie Stevens.

 (3) The circuit court erred in failing to recognize the existence of genuine issues of material fact with regard to the intentional misconduct of the appellee, FMC Corporation.

 (4) The circuit court erred in failing to recognize that the intentional misconduct of the appellee, FMC Corporation, constitutes an exception to the exclusivity provisions of Mississippi's Workmen's Compensation Act.

 (5) The circuit court erred in granting summary judgment denying the claim of the appellant, Burie Stevens, for loss of consortium.

 I.

 On May 10, 1979, plaintiff A. W. Stevens was injured while working at his job on an assembly line at FMC's materials handling plant in Tupelo, Mississippi. Plaintiff's job involved the placement of parts, called" races ", into conveyor rollers using a four pound metal shop hammer. A small chip of metal broke off the hammer he was using and injured plaintiff's left arm.

 From time to time, small metal chips struck other employees of FMC and FMC supervisory personnel were aware of the occurrences and had taken steps to prevent the annoyance and potential injury.

 FMC instituted a policy requiring that individual workers carefully maintain, or" dress, "their shop hammers by grinding the head of a hammer any time it began to flatten and spread out, a condition known as" mushrooming. "Although plaintiff was aware of this policy, his hammer head was mushroomed at the time of his accident. Although the race-driving process is largely mechanized today, four pound metal shop hammers are still used to drive races into conveyor rollers for custom jobs or for orders too small to be handled by FMC's automated line.

 Plaintiff received workers' compensation benefits and medical expenses from FMC as a result of his on-the-job accident. For the duration of the protracted compensation claim process, neither plaintiff nor FMC ever suggested that plaintiff's injury was not compensable under the Act. The controverted issues in the workers' compensation claim involved only the extent to which plaintiff was actually injured.

 Five years and eight months after the accident, plaintiff filed this action alleging negligence and" willful, gross and wanton "actions by his employer, but not actually alleging an intentional tort. At the same time, plaintiff's wife files a substantially identical complaint seeking damages for loss of consortium.

 Mr. Stevens' action alleges that FMC intentionally persisted in directing and requiring their employees to engage in the unsafe practice of smashing metal against metal. More specifically, Mr. Stevens argues that the intentional conduct and actions of FMC Corporation constituted an exception to the exclusivity provisions of the Workmen's Compensation Act. ...


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