WILLIAM J. FORTNER APPELLANT
SPECIALTY CONTRACTING, LLC APPELLEE
OF JUDGMENT: 05/21/2015
COUNTY CIRCUIT COURT HON. LEE SORRELS COLEMAN TRIAL JUDGE
ATTORNEY FOR APPELLANT: DAVID O. BUTTS JR.
ATTORNEYS FOR APPELLEE: CECIL MAISON HEIDELBERG MICHAEL O.
William Fortner was injured while working for Specialty
Contracting LLC ("Specialty"). John Stark, a
Specialty employee, was backing up a tractor trailer to a
loading platform, and Fortner was behind the trailer
directing him by walkie-talkie. The trailer struck Fortner,
pinning him to the platform and causing serious injuries.
Fortner filed suit against Specialty in circuit court,
alleging that Specialty was liable for Stark's
negligence. However, the circuit court granted summary
judgment for Specialty on the ground that Fortner was an
employee of Specialty and his exclusive remedy was under the
Workers' Compensation Law. On appeal, Fortner argues that
he was an independent contractor, not an employee. In the
alternative, he argues that Speciality waived or should be
estopped from asserting the exclusive remedy provision of the
Workers' Compensation Law as a defense. We conclude that
Specialty was entitled to summary judgment. Accordingly, we
AND PROCEDURAL HISTORY
Specialty is in the business of assembling and delivering
prefabricated metal buildings. Stark delivered buildings for
Specialty by tractor trailer. In June 2013, Stark asked
Specialty's owner, Chris Adams, for permission to hire
Fortner to assist him in making deliveries. Fortner was a
friend of Stark, and Stark offered to pay Fortner out of his
own pocket. Adams consented to Fortner's employment, and
Specialty increased Stark's compensation to partially
offset the cost of Stark's payments to Fortner.
Fortner began working with Stark during the last week of June
2013. Fortner was paid $100 per day, although he was not
listed on Specialty's payroll as a W-2 employee, and no
taxes were withheld from his wages. Fortner and Stark met at
Stark's home each morning and rode together to
Specialty's office, where Stark received the day's
work order. Fortner and Stark would then load a building onto
a tractor trailer owned by Specialty and deliver it to the
specified location. Stark always drove because he had a
commercial driver's license, whereas Fortner did not. At
their destination, Stark and Fortner would unload the
building and anchor it into the ground. Speciality provided
them with all necessary equipment.
On July 2, 2013, Fortner was standing behind the truck giving
Stark directions as he backed the truck up to a loading
platform. According to Fortner, he directed Stark to drive
forward, but Stark backed up instead. The truck's trailer
struck Fortner and pinned him to the loading platform.
Fortner sustained serious injuries to both of his legs as a
On October 15, 2013, Fortner filed suit against Specialty in
the Noxubee County Circuit Court. Fortner alleged that
Speciality was liable for Stark's negligence because
Stark was acting in the course and scope of his employment
with Specialty. Specialty's answer admitted that Stark
was acting in the course and scope of his employment at the
time of the incident. Specialty also raised the exclusive
remedy provision of the Workers' Compensation Law as a
On December 18, 2013, Progressive Gulf Insurance Company
("Progressive") filed a complaint for a declaratory
judgment against Speciality and Fortner in the U.S. District
Court for the Northern District of Mississippi. Progressive
had issued a commercial automobile liability insurance policy
to Specialty. In its complaint, Progressive sought a
declaratory judgment that Fortner's injuries were
excluded from coverage under the policy because, inter alia,
Fortner was an employee who was entitled to workers'
compensation benefits. On March 19, 2014, Progressive filed
an amended complaint that added Bridgefield Casualty
Insurance Company ("Bridgefield") as a defendant.
Bridgefield is Specialty's workers' compensation
carrier. Progressive's amended complaint was ultimately
dismissed without prejudice by stipulation of all parties on
January 7, 2015.
On July 29, 2014, Specialty filed a third-party complaint in
the Noxubee County Circuit Court case against Progressive,
Bridgefield, and Fortner. Specialty alleged that Progressive
and Bridgefield had breached their respective duties to
defend and indemnify Specialty against the underlying
complaint filed by Fortner. Specialty further alleged that
Progressive's federal declaratory judgment action was an
improper interference with Specialty's efforts to defend
the circuit court action. On February 13, 2015, the circuit
court dismissed Specialty's third-party complaint without
prejudice with the approval of all parties, i.e., Specialty,
Progressive, Bridgefield, and Fortner.
On November 26, 2014, Fortner filed a motion for partial
summary judgment, seeking a determination that he was an
independent contractor, not an employee, at the time of his
injuries. Specialty responded to Fortner's motion and
also moved for summary judgment. Specialty argued that
Fortner was an employee and, therefore, his tort claim was
barred by the exclusive remedy provision of the Workers'
Compensation Law. The circuit court agreed with Specialty
that Fortner was an employee and entered summary judgment in
favor of Speciality on May 26, 2015. Fortner filed a timely
notice of appeal.
On July 1, 2015, Fortner filed a petition to controvert with
the Workers' Compensation Commission. Fortner's
petition made clear that it was a "protective
filing" based on the circuit court's order granting
summary judgment. That is, Fortner filed the petition so that
his workers' compensation claim would not be time-barred
in the event that this appeal proved unsuccessful. On July 9,
2015, Specialty/Bridgefield filed an answer to the petition
in which they admitted that Fortner was an employee of
Specialty, that he was injured in the course of his
employment, and that the injury arose out of his employment.
Bridgefield also tendered payment of temporary total
disability benefits, although Fortner's counsel stated at
oral argument that Fortner has not yet accepted payment.
Fortner raises three issues on appeal. First, he argues that
the circuit court erred in granting summary judgment in favor
of Specialty because he is an independent contractor. Second,
he argues that Specialty should be estopped from claiming
that he was an employee because Specialty never withheld
taxes from his wages or notified the Workers'
Compensation Commission of his injury. Third, he argues that
Specialty waived its defense of immunity under the
Workers' Compensation Law because it waited too long to
file a motion for summary judgment based on the defense.
Finding no error, we affirm.
Fortner was an employee, not an independent
"We review the grant or denial of a motion for summary
judgment de novo, viewing the evidence 'in the light most
favorable to the party against whom the motion has been
made.'" Karpinsky v. Am. Nat'l Ins.,
109 So.3d 84, 88 (¶9) (Miss. 2013) (quoting Pratt v.
Gulfport-Biloxi Reg'l Airport Auth., 97 So.3d 68, 71
(¶5) (Miss. 2012)). "A grant of summary judgment
will be upheld only when, viewing the evidence in the light
most favorable to the nonmoving party, ...