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Bowden v. Young

Supreme Court of Mississippi

September 5, 2013

Ben U. BOWDEN, Tom Vaughn, Debra Vaughn, Vaughn & Bowden, PA f/k/a Vaughn, Bowden & Wooten, PA, Lowry Development, LLC and Jim Lowry.
Diane YOUNG, Cherie Brott Blackmore and Paul Blackmore Jim Lowry and Lowry Development, LLC
Diane Young, Cherie Brott Blackmore and Paul Blackmore.

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[Copyrighted Material Omitted]

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Joe Sam Owen, Gulfport, Carroll H. Ingram, Joseph Darrell Songy, Hattiesburg, attorneys for appellants.

Larry Edward Parrish, Louis H. Watson, Jr., Jackson, attorneys for appellees.


KITCHENS, Justice.

¶ 1. This is an interlocutory appeal from the trial court's denial of the defendant Vaughn, Bowden, PA's (V & B) (f/k/a Vaughn, Bowden & Wooten, PA) motion to dismiss for failure to state a claim upon which relief can be granted.

¶ 2. The plaintiffs, Cherie Brott Blackmore and Diane Young,[1] sued their former employer, the law firm of V & B, as well as the individual partners, Eric Wooten, Ben Bowden, Tom Vaughn, and office administrator Debra Vaughn, for multiple claims regarding the presence of toxic mold in two of the offices in which the firm had worked. They also argue that they were exposed to sewer gas and a natural gas leak. The plaintiffs also sued Lowry Development, LLC, and its owner, Jim Lowry (collectively, " Lowry" ), as they owned the second building in which both Blackmore and Young claim they were injured. V & B argues that all claims against it relate to unintentional torts, and therefore are governed by the Mississippi Workers' Compensation Act (MWCA),[2] and that the plaintiffs' sole avenue of relief lies with workers' compensation. Alternatively, they argue that the claims of battery and intentional infliction of emotional distress were not timely pled within the one-year statute of limitations for intentional torts.[3] The plaintiffs claim that, beyond the intentional torts, the defendants are guilty of conspiracy to withhold the truth about the toxic mold in the building, and, as a result of that conspiracy, the plaintiffs were injured. They also claim that V & B aided and abetted Lowry in maintaining a public and private nuisance. Lowry joins V & B's arguments that the plaintiffs' claims are barred by the statute of limitations.

¶ 3. V & B moved to dismiss the plaintiffs' claims against it under Rule 12(b)(6) of the Mississippi Rules of Civil Procedure, contending that the plaintiffs had failed to present any claims on which relief could be granted. Lowry also filed a Rule12(b)(6) motion to dismiss. The trial court denied both motions. V & B and Lowry petitioned this Court for interlocutory appeal. This Court granted and consolidated both appeals to address whether the trial court properly had denied each defendant's motion to dismiss. Several of the claims against V & B are distinct from the claims against Lowry. However, Lowry has not submitted any briefs to this Court, and instead has joined V & B's arguments to the extent that they apply to Lowry.

¶ 4. With respect to the plaintiffs' claims against V & B, we find that the plaintiffs have failed to allege any acts on the part of the defendants which rise to the level of intent that would remove their claims from the exclusivity of the MWCA as defined by

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this court in Franklin Corp. v. Tedford, 18 So.3d 215 (Miss.2009), and Peaster v. David New Drilling Co., 642 So.2d 344 (Miss.1994). Accordingly, we hold that the sole avenue for relief for the plaintiffs' unintentional tort claims against V & B lies in the MWCA. We therefore reverse the trial court's decision and dismiss the complaint against V & B for failure to state a claim upon which relief can be granted.

¶ 5. We further find that Lowry's joinder with V & B's briefs leaves unaddressed several issues specific to Lowry. Accordingly, we cannot make an informed decision of the merits of Lowry's interlocutory appeal, and find instead that dismissal of that appeal is appropriate.


¶ 6. Cheri Blackmore and Diane Young were legal assistants at V & B. Blackmore worked at V & B from 2006 until December 2009. Young worked at the firm from August 2009 until December 2009. In 2006, Blackmore worked in one of the firm's buildings on 23rd Avenue in Gulfport (Building A). Blackmore contends that her health deteriorated significantly during her time at that building as a result of exposure to toxic mold there. She alleges that several others at the office experienced similar symptoms, and that one employee was even fired for failing to show up for work on account of poor health. This led Blackmore to fear that any complaints or excessive absences would cost her her job. She alleges that the supervisors at the firm ignored her complaints and told the employees to stop whining.

¶ 7. In February 2009, the firm moved all of its employees to a new building on 25th Avenue in Gulfport (Building B). This building was owned by Lowry and leased to V & B. V & B admit that this building suffered from moisture intrusion. Blackmore claims that, when she moved to Building B, she continued to suffer the same mold-exposure symptoms she had suffered at Building A. The building also had a gas leak which exposed workers to natural-gas fumes. Several raw-sewage backups occurred in the women's restroom, which flooded into the front of the office. The plaintiffs claim that Lowry Development and V & B were informed repeatedly about the presence of mold in Building B, but did nothing to remediate it. In June 2009, a " Mold Killer Spray" was applied to the surfaces of the office in Building B. The plaintiffs claim this also damaged the health of the V & B employees. In August 2009, Young began working at Building B. She claims that she immediately began to suffer health problems because of exposure to mold. Throughout the time the plaintiffs claim they were exposed to toxic mold at Building B, the partners who have been named defendants also worked in the same building.

¶ 8. V & B says that it repeatedly requested that Lowry Development fix the problem of moisture intrusion. V & B ultimately decided to move from the building in the fall of 2009, but it took several months for them to find a suitable new location. In October 2009, a federal agency representative from the Occupational Safety and Health Administration (OSHA) met with V & B to discuss the mold issue. The plaintiffs claim that management at V & B lied to the OSHA representative and stated that there was no mold in the office. V & B collected samples to send to a laboratory to determine the extent of the mold problem in the office. The results of the testing were contained in the October Lab Report. According to the plaintiffs, the report revealed " high levels of mold poisonous to susceptible humans." In December

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2009, Blackmore sent a blood sample to a laboratory to be tested for the presence of poisonous mold. The lab report indicated that her blood contained " fine particulates of the type emitted only by mold species poisonous to susceptible humans."

¶ 9. In December 2009, Blackmore and Young saw the results of the October Lab Report, which indicated that the Environmental Relative Moldiness Index was 21.1. The report stated that " a score of 5 to 20 is high for any indoor environment." V & B completed its move in January 2010. Neither Blackmore nor Young returned to work after the Christmas holidays of 2009. On December 28, 2009, counsel for Blackmore and Young sent a letter to V & B, stating that the plaintiffs were having health problems as a result of mold exposure and that they intended to file a lawsuit against the firm. On March 30, 2010, the Blackmores, represented by different counsel than in the present suit, filed a complaint against Lowry. Young also filed a complaint against Lowry on May 19, 2010. Subsequently, the plaintiffs filed the present suit against V & B and Lowry Development on March 11, 2011, fifteen months after Blackmore and Young stopped working for V & B. Blackmore also filed a petition to controvert with the Mississippi Workers' Compensation Commission on February 11, 2010, claiming she was entitled to workers' compensation benefits due to her exposure to toxic mold.

¶ 10. The plaintiffs brought claims against V & B for battery, intentional infliction of emotional distress, aiding and abetting the maintenance of a public and private nuisance, and conspiracy. They also brought claims against Lowry Development for premises liability, conspiracy, negligent construction, creation and maintenance of a public and private nuisance, and loss of consortium. V & B argued that the plaintiffs did not allege any intentional conduct, and therefore their sole avenue for relief was under the Mississippi Worker's Compensation Act (MWCA). Miss.Code Ann. § 71-3-9 (Rev.2011). Alternatively, V & B argued that the claims against V & B were for intentional torts, with a statute of limitations of one year. Since the suit was filed more than a year after the injuries allegedly were suffered by the plaintiffs, V & B argue that they were time-barred. V & B moved to dismiss under Rule 12(b)(6) of the Mississippi Rules of Civil Procedure for failure to state a claim for which relief can be granted, arguing that the claims were barred either by the MWCA or by the statute of limitations, and the plaintiffs were not entitled to relief. Lowry moved to dismiss as well, joining V & B's argument that the one-year statute of limitations for intentional torts ...

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