United States District Court, N.D. Mississippi, Aberdeen Division
OPINION GRANTING PLAINTIFF'S MOTION FOR SUMMARY
before the Court are the Plaintiffs and the Defendant Double
J Timber's competing motions for summary judgment [Doc.
Nos. 43, 48] in this declaratory judgment action. Upon due
consideration, the Court finds that the Plaintiffs motion
should be granted and the Defendant's motion should be
Factual and Procedural Background
Plaintiff filed its Complaint for Declaratory Relief on March
18, 2018, requesting that the Court determine whether the
Plaintiff owes a duty to indemnify and/or defend the
Defendants Double J Timber Company, Inc. and Terry Johnson
against claims pending versus them in a state court wrongful
death action. See Compl. [Doc. 1].
issue is a general liability policy the Plaintiff issued to
Double J Timber with a relevant policy limit of $1, 000, 000,
and whether that Policy's "Employee" exclusion
acts to preclude coverage for defense and indemnity of the
wrongful death action. See Policy, Doc. 1-1. The
Policy, which the court finds is unambiguous and which both
parties agree was in force and that, in the absence of any
applicable exclusions, applies to the claims pending against
Defendants Double J Timber and Terry Johnson in state court,
provides in relevant part that the Plaintiff will both defend
Double J Timber in any suit seeking damages because of bodily
injury and will indemnify Double J Timber and pay any sums
that Double J Timber becomes legally obligated to pay as a
result of such a suit unless a policy exclusion applies.
See Policy, Doc. 1-1. The Plaintiff argues that the
Policy's "Employer's Liability" exclusion
applies because it excludes coverage for "bodily
injury" to an "employee" of the insured
arising out of and in the course of employment by the insured
or during the performance of duties related to the conduct of
the insured's business. See Id. Accordingly, the
key determination the Court must make is whether the decedent
Jerry Johnson was an employee of Double J Timber on June 1,
2017. Further, the Court must determine if the Defendant
Terry Johnson was an employee of Double J Timber on that date
given the policy's exclusion of employees as
"Insureds" for the purposes of bodily injury that
occurs to co-employees while that employee is performing
duties related to the conduct of the subject Insured's
Plaintiffs in the state court wrongful death action allege
that on June 1, 2017, Defendant Terry Johnson was operating a
skidder while performing logging/timber-cutting operations
for the Defendant Double J Timber Company in Choctaw County,
Mississippi, when he negligently caused the skidder to
overrun Jerry Lee Johnson, the decedent in the state court
action, resulting in Jerry's death. The subject state
court wrongful death action followed and the Plaintiff in the
case sub judice now requests that the Court rule on
the question of whether the decedent Jerry Johnson and the
Defendant Terry Johnson were employees or independent
contractors of Double J Timber on June 1, 2017. If they were
employees and either working in the course and scope of their
employment or performing duties related to the conduct of
Double J Timber's business, the Employee exclusion
contained within the Policy will preclude coverage for
defense and indemnity of the wrongful death action. The
parties agree that this determination is decisive in this
action and both the Plaintiff and the Defendant Double J
Timber have filed motions for summary judgment.
Summary Judgment Standard
Court grants summary judgment "if the pleadings, the
discovery and disclosure materials on file, and any
affidavits show that there is no genuine dispute as to any
material fact and that the movant is entitled to judgment as
a matter of law." Fed.R.Civ.P. 56(a); Celotex Corp.
v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91
L.Ed.2d 265 (1986); Weaver v. CCA Indus., Inc., 529
F.3d 335, 339 (5th Cir. 2008). The rule "mandates the
entry of summary judgment, after adequate time for discovery
and upon motion, against a party who fails to make a
sufficient showing to establish the existence of an element
essential to that party's case, and on which that party
will bear the burden of proof at trial." Celotex
Corp., 477 U.S. at 322.
party moving for summary judgment bears the initial
responsibility of informing the Court of the basis for its
motion and identifying those portions of the record it
believes demonstrate the absence of a genuine dispute of
material fact. Id. at 323. Under Rule 56(a), the
burden then shifts to the nonmovant to "go beyond the
pleadings and by ... affidavits, or by the 'depositions,
answers to interrogatories, and admissions on file,'
designate 'specific facts showing that there is a genuine
issue for trial.'" Id. at 324; Little
fleld v. Forney Indep. Sch Dist., 268 F.3d 275, 282 (5th
Cir. 2001); Willis v. Roche Biomedical Labs., Inc.,
61 F.3d 313, 315 (5th Cir. 1995). When the parties dispute
the facts, the Court must view the facts and draw reasonable
inferences in the light most favorable to the non-moving
party. Scott v. Harris, 550 U.S. 372, 378, 127 S.Ct.
1769, 167 L.Ed.2d 686 (2007) (internal citations omitted).
"However, a nonmovant may not overcome the summary
judgment standard with conclusional allegations, unsupported
assertions, or presentation of only a scintilla of
evidence." McClure v. Boles, 490 Fed.Appx. 666,
667 (5th Cir. 2012) (per curiam) (citing Hathaway v.
Bazany, 507 F.3d 312, 319 (5th Cir. 2007)).
Analysis and Discussion
Plaintiff argues that summary judgment in its favor is
warranted because Terry and Jerry Johnson were employees, and
not independent contractors, of Double J Timber on the date
of the fatal accident. The Defendants argue the opposite,
asserting that the Johnsons were acting as independent
contractors for Double J Timber on the relevant date.
Employee versus Independent Contractor Status
Court notes at the outset that in this diversity action, the
Erie doctrine applies and thus the determination of
the Johnsons' status as employees or independent
contractors on the date of the accident is guided by
Mississippi state law. Erie R. Co. v. Tompkins, 304
U.S. 64, 78-80 (1938); Centennial Ins. Co. v. Ryder Truck
Rental, Inc., 149 F.3d 378, 382 (5th Cir. 1998).
Mississippi law, a servant or employee is "a person
employed by a master to perform service in his affairs whose
physical conduct in the performance of the service is
controlled or is subject to the right to control by the
master." Richardson v. APAC-Mississippi, Inc.,
631 So.2d 143, 148 (Miss. 1994). An independent contractor is
defined as "a person who contracts with another to do
something for him but who is not controlled by the other nor
subject to the other's right to control with respect to
his physical conduct in the performance of the
undertaking." Id. In short, the difference
between a master-servant relationship and an
independent-contractor relationship is that an employer in a
master-servant relationship has control of, or the right to
control, the employee in the details of the work. Hill v.
City of Horn Lake, 160 So.3d 671, 676 (Miss. 2015);
Miller v. R.B. Wall Oil Co., Inc., 970 So.2d 127,
132 (Miss. 2007); Stewart v. Lofton Timber Co., LLC,
943 So.2d 729, 734 (Miss. 2006).
distinction between an employee and an independent contractor
is a difficult one to make and has been described by the
Mississippi Supreme Court as "elusive."
Richardson, 631 So.2d at 148 (citation omitted).
However, the Mississippi Supreme Court has provided factors
to consider when ...