JERRY WILLIAMS, AS ADMINISTRATOR OF THE ESTATE OF PHILLIP C. HOSCH, APPELLANT
MUELLER COPPER TUBE COMPANY, INC. AND MUELLER INDUSTRIES, INC., APPELLEES
DATE OF JUDGMENT: 10/31/2012.
COURT FROM WHICH APPEALED: ITAWAMBA COUNTY CIRCUIT COURT, TRIAL JUDGE: HON. JAMES LAMAR ROBERTS JR. TRIAL COURT DISPOSITION: MOTION TO DISMISS GRANTED.
FOR APPELLANT: TYLER CHARLES VAIL, STEVEN W. COUCH.
FOR APPELLEES: J. LAWSON HESTER, JASON EDWARD DARE.
FAIR, J. LEE, C.J., IRVING AND GRIFFIS, P.JJ., ISHEE, ROBERTS AND MAXWELL, JJ., CONCUR. JAMES, J., CONCURS IN PART WITHOUT SEPARATE WRITTEN OPINION. CARLTON, J., DISSENTS WITH SEPARATE WRITTEN OPINION. BARNES, J., NOT PARTICIPATING.
NATURE OF THE CASE: CIVIL - OTHER
¶1 Philip Hosch was killed in an explosion at work in Fulton, Mississippi. Hosch's estate brought suit against his employer, Mueller Copper Tube Company, alleging that it " willfully, recklessly, egregiously[,] and intentionally" failed to provide Hosch with a safe working environment, " with an intent to injure." The estate also sued the employer's parent corporation, Mueller Industries, essentially contending that it failed to supervise its subsidiary. The trial court granted the Mueller defendants' Rule 12(b)(6) motion to dismiss and certified the judgment as final under Rule 54(b). Numerous other defendants in the original suit are not parties to this appeal.
¶2 The trial court found that Hosch's estate, by accepting $2,000 in funeral expenses as workers' compensation benefits, had made an election of remedies and could not pursue a tort claim against either Mueller defendant. We conclude that the dismissal cannot be upheld under Rule 12(b)(6) because it depends on evidence outside the pleadings. And since both sides agree the trial court did not convert the Rule 12(b)(6) motion to dismiss into a motion for summary judgment, we must reverse and remand this case for further proceedings consistent with this opinion.
¶3 Our analysis of this issue is hobbled by the parties' failure to recognize the fundamental difference between motions to dismiss under Rules 12 and 56. " Rule 12(b)(6) tests the legal sufficiency of a complaint, and provides that dismissal shall be granted to the moving party where the plaintiff has failed to state a claim upon ...