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Powe v. Roy Anderson Construction Co.9/6/2005
NATURE OF THE CASE: CIVIL - WORKERS' COMPENSATION
DISPOSITION: AFFIRMED - 09/06/2005
BEFORE LEE, P.J., IRVING AND ISHEE, JJ.
. Johnny Powe was injured in a work-related accident on January 17, 2002. Having received payments through workers' compensation , Powe and his wife filed suit against his employer, ADS, L.L.C., (ADS) and Roy Anderson (Anderson), the contractor who hired ADS. The defendants filed a motion for summary judgment, which the trial court granted. It is from this ruling which the Powes now appeal. Finding that the trial court properly ascertained and applied the law, we affirm.
FACTS AND PROCEDURAL HISTORY
. Anderson, a Mississippi corporation, was hired as the general contractor overseeing the expansion of Vaught-Hemmingway Stadium in Oxford, Mississippi. Anderson sub-contracted ADS to perform the project's concrete finishing. ADS is an Alabama corporation with its principal place of business in Alabama. ADS subsequently hired Johnny Powe, a life-long Alabama resident, as a laborer on January 16, 2002.
. On January 17, Powe and other ADS employees were pouring concrete for an elevator or stairwell shaft and were lifted to a location between sixty and eighty feet in the air. While they were working, the platform on which Powe and his co-workers were standing collapsed, causing Powe and the other workers to fall to the ground. Powe received a severe injury to his back which required surgery. Powe is now permanently partially disabled.
. Powe and his wife filed suit in Hinds County on December 31, 2002. The litigation was subsequently transferred to Harrison County. ADS had workers' compensation insurance under a policy with the Alabama Self-Insured Workers' Compensation Fund. The Fund paid Powe benefits in the amount of $28,181 in addition to paying $96,127 for medical services rendered to Powe. The Fund filed a motion to intervene foregoing recovery against Anderson or ADS; however, the Fund is not a party to the appeal sub judice. Anderson filed a motion for summary judgment, arguing that it should be dismissed as a defendant because the company was immune under Mississippi law. ADS also filed a motion for summary judgment, arguing substantially the same theory. A hearing on the motion was held on October 13, 2003, and on April 1, 2004, the trial court granted both Anderson's and ADS's motions.
. The Powes now appeal this ruling, arguing that the summary judgment was improper because of the following four points of error: (1) because this is a breach of contract action, Alabama law should apply; (2) under Alabama law, Anderson is not entitled to immunity; (3) under Alabama law ADS is not entitled to immunity; and (4) the motions for summary judgment were premature because Powe did not have adequate time for discovery on outstanding fact issues.
STANDARD OF REVIEW
. "This Court applies a de novo standard of review to a grant of summary judgment by the lower court. The evidence must be viewed in the light most favorable to the party against whom the motion has been made." Hudson v. Courtesy Motors, Inc., 794 So. 2d 999, 1002 ( ) (Miss. 2001) (quoting Russell v. Orr, 700 So. 2d 619, 622 ( ) (Miss.1997)).
APPLICABLE LAW
. The Mississippi Workers' Compensation Act provides that " n the case of an employer who is a subcontractor, the contractor shall be liable for and shall secure the payment of such compensation to employees of the subcontractor, unless the subcontractor has secured such payment." Miss. Code Ann. ยง 71-3-7 (Rev. 2000). The law further states that:
The liability of an employer to pay compensation shall
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