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Fortner v. Specialty Contracting, LLC

Court of Appeals of Mississippi

January 31, 2017

WILLIAM J. FORTNER APPELLANT
v.
SPECIALTY CONTRACTING, LLC APPELLEE

          DATE OF JUDGMENT: 05/21/2015

         NOXUBEE COUNTY CIRCUIT COURT HON. LEE SORRELS COLEMAN TRIAL JUDGE

          ATTORNEY FOR APPELLANT: DAVID O. BUTTS JR.

          ATTORNEYS FOR APPELLEE: CECIL MAISON HEIDELBERG MICHAEL O. GWIN

         EN BANC.

          WILSON, J.

         ¶1. 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 affirm.

         FACTS AND PROCEDURAL HISTORY

         ¶2. 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.

         ¶3. 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.

         ¶4. 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 result.

         ¶5. 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 defense.

         ¶6. 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.

         ¶7. 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.

         ¶8. 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.

         ¶9. 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.

         ANALYSIS

         ¶10. 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.

         I. Fortner was an employee, not an independent contractor.

         ¶11. "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 (ΒΆ5) (Miss. 2012)). "A grant of summary judgment will be upheld only when, viewing the evidence in the light most favorable to the nonmoving party, ...


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