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Accu-Fab & Construction Inc. v. Ladner6/29/1999
DATE OF JUDGMENT: 04/16/95
TRIAL JUDGE: HON. KATHY KING JACKSON
COURT FROM WHICH APPEALED: JACKSON COUNTY CIRCUIT COURT
NATURE OF THE CASE: CIVIL - WRONGFUL DEATH
TRIAL COURT DISPOSITION: $2,000,000 VERDICT FOR WRONGFUL DEATH
DISPOSITION: REVERSED AND REMANDED -
EN BANC:
FOR THE COURT:
.A Jackson County jury awarded damages for the death of Richard Ladner to his family against Roy Anderson Corporation ("Anderson") and Accu-Fab and Construction, Inc. ("Accu-Fab"). Anderson and Acccu-Fab have appealed that jury verdict.
.Finding error in the failure of the trial court to properly apportion fault, as required by Miss. Code Ann. § 85-5-7 (Rev. 1991), we reverse and remand this matter for action consistent with this opinion.
FACTS
.In November 1993, Boomtown, Inc., a casino operator, had employed Anderson, as general contractor, to construct the Boomtown Casino in Biloxi, Mississippi. Anderson subcontracted a good portion of the work. Among the subcontractors were Accu-Fab, a metal fabricator, and Bracken Construction ("Bracken"), which employed Ladner as an iron worker .
.On Monday morning, March 7, 1994, while working on the roof of the Boomtown Casino, Ladner fell through a hole cut in the roof and subsequently died of the injuries received.
.Ladner's family filed suit against Anderson, Accu-Fab, and Boomtown, Inc., seeking compensation for Ladner's death.
.Boomtown Inc., dismissed at the start of the trial, is not a party to this appeal.
.The Boomtown Casino was being constructed on a barge, on a navigable waterway. As a result, injuries sustained by construction workers were covered under the Longshore and Harbor Workers' Compensation Act, codified as 33 U.S.C. § 901 a federally sponsored workers' compensation program covering some maritime workers. Because this coverage was provided by the employer, and is an exclusive remedy, Bracken as Ladner's employer was not a party to this action. 33 U.S.C. § 905.
.Both Anderson and Accu-Fab requested jury instructions to include Bracken in the apportionment of liability, pursuant to Miss. Code Ann. § 85-5-7.
.The trial court, citing McBride v. Chevron U.S.A., 673 So.2d 372 (Miss. 1996), denied the instructions.
DISCUSSION
I. DID THE COURT ERR IN EXCLUDING BRACKEN CONSTRUCTION COMPANY FROM APPORTIONMENT OF FAULT?
.Bracken, as required by 33 U.S.C. § 902 maintained Longshore and Harbor Workers' Compensation coverage for its employees engaged in covered maritime work. Benefits were paid to the Ladner family under the Longshore and Harbor Workers' Compensation Act. These benefits were the exclusive remedy which were available to Ladner against Bracken.
.Because Bracken was not a party to this action, the trial court refused to allow the jury to consider the extent of fault, if any, of Bracken in causing Ladner's injuries.
.Mississippi Code Annotated § 85-5-7 (Rev. 1991) provides for the allocation of fault and contribution among joint tort-feasors. Section 85-5-7(7) places the responsibility upon the triers of fact to "determine the percentage of fault of each party alleged to be at fault." The trial court, based upon McBride, interpreted the term "party" to mean an actual party to the lawsuit.
.Subsequently to the trial of this action, the Mississippi Supreme Court on January 14, 1999, decided In Re Estate of Hunter, 96-CA-01278-SCT ( )(Miss. January 14, 1999). In Estate of Hunter, the supreme court considered this issue, and specifically
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