PETITION FOR WRIT OF CERTIORARI

Transcription

1 E-Filed Document May :19: CT SCT Pages: 6 IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI DALTON RAY STEWART vs. VS. DYNAMIC ENVIRONMENTAL SERVICES, LLC APPELLANT NO WC COA AND HDI-GERLING AMERICA INSURANCE COMPANY APPELLEES ON APPEAL FROM MISSISSIPPI WORKERS' COMPENSATION COMMISSION MWCC NO P-1740-E 30 PETITION FOR WRIT OF CERTIORARI Wayne E. Ferrell, Jr. (Bar No. 5182) P. 0. O. Box Jackson, MS Telephone: (601) Fax: (601) wferrell@airlawonline.com David N. Gillis (Bar No. 4852) 405 Tombigbee St. Jackson,MS Telephone: Fax: dgillisl@bellsouth.net Attorneys for Appellant

2 IN THE SUPREME COURT OF THE STATE OF MISSISSIPPI DALTON RAY STEWART VS. APPELLANT NO.2017-WC COA DYNAMIC ENVIRONMENTAL SERVICES, LLC AND HDI-GERLING AMERICA INSURANCE COMPANY APPELLEES PETITION FOR WRIT OF -CERTIORARI COMES NOW Dalton Ray Stewart, Appellant, and files his Petition For Writ Of Certiorari against Dynamic Environmental Services, LLC, (hereinafter "Dynamic") and HDI Gerling America Insurance Company, Appellees, as follows: 1. The Court should grant certiorari in the above styled cause because the decision rendered by the Court of Appeals is in conflict with prior decisions rendered by this Court. In previous decisions, this Court has held that after a claim has been dismissed on motion in the Commission without testimony being taken, the case on appeal must be reviewed in the following manner: Facts tendered by the claimant must be accepted as true; it must be assumed that claimant could prove all facts set forth in his claim; and, all reasonable inferences deducible from the evidence must be resolved in the claimant's favor. Scott Builders, Inc. v. Layton, 244 Miss. 641, 145 So. 2d 165, 167 (1962); Yazoo Manufacturing Company v. Schaffer, 254 Miss. 35, 179 So. 2d 784, 791 (1965); Dunn, Mississippi Workmen's Compensation, (3rd ed. 1982),361 at p The Court of Appeals did not conduct its review of this claim in the manner required by Scott Builders, Inc., and Yazoo Manufacturing Company, and its decision is in conflict with these prior decisions. This Court, therefore, should grant certiorari under M.RA.P. 17(a)(I).

3 The facts tendered by Stewart are contained in his affidavit and in the transcript of Facebook communications between Stewart and Mr. Fullilove included with the affidavit. R Stewart Those facts show that although Stewart initially contacted Mr. Fullilove seeking a job with Dynamic, he eventually took a job with Macro Companies because Dynamic did not appear interested in hiring him. Id. When he told Mr. Fullilove that he had accepted another job, Mr. Fullilove pleaded for more time to obtain hiring approval and told Stewart that he really needed Stewart in Texas working with him. Id. Later, Mr. Fullilove indicated he accepted the fact that Stewart would not be coming to work with Dynamic and he wished Stewart good luck in his new job. Id. Still later, after Mr. Fullilove had received approval from Dynamic, he contacted Stewart and hired him away from Macro by agreeing to pay a higher wage rate. Id. Stewart promptly quit his job with Macro and traveled to Texas to begin work. Id. Stewart stated he would not have quit the job with Macro if he had not been assured that he had been hired by Mr. Fullilove at a higher rate of pay than what Macro paid. Id. All communications between the two men occurred while Stewart was at his home in Mississippi. Id. Under the prior decisions rendered by this Court, these facts must be taken as true, it must be assumed that Stewart could prove these facts and all reasonable inferences deducible from the evidence must be resolved in Stewart's favor. Scott Builders, Inc., 145 So. 2d at 167; Yazoo Manufacturing Company, 179 So. 2d at 791; Dunn, Mississippi Workmen's Compensation, at p Stewart submits that common sense tells you that he would not have given up a job and income with Macro in exchange for agreeing to travel to Texas and hoping that Dynamic might hire him once he presented himself at Dynamic's Texas office. Once the facts tendered by Stewart are considered as true and provable, it is reasonable to conclude that Stewart was hired by Mr. Fullilove while Stewart was present at his home in Mississippi. 2

4 The second part of the relevant statute requires that Mr. Stewart suffer his injury while employed in Texas on a temporary basis. Miss. Code Ann The decision found that Stewart was working in Texas on a permanent assignment. Decision, '17. In support of that finding, the decision cited the case of Rice v. Burlington Motor Carriers, Inc., 839 So. 2d 602 (Miss. App. 2003) and found that Rice was analogous to the instant case. Decision,,18 & 19. Stewart submits that Rice is not analogous since, unlike the instant case, Mr. Rice was present in Tennessee, not Mississippi, when he was hired and Mr. Rice also signed a contract to be covered by Indiana law in the event of injury. 839 So. 2d In this case, Dynamic had Stewart sign a document entitled "90-Day Trial Employment Agreement". R Stewart The Agreement stated that it was understood by Stewart that he was being employed on a 90-day trial basis during which time he could be terminated for any reason. Id. As argued in the brief, it is too speculative to assume that Stewart would have been hired on a permanent basis after he had completed his trial period of employment. Winborn v. R. B. Tyler Co., 231 Miss. 166,94 So. 2d 340, 344 (1957). Stewart submits, therefore, that his employment in Texas at the time of his accident was of a temporary, rather than permanent, nature. 2. Counsel for Stewart has been unable to find another case in Mississippi jurisprudence containing the factual situation presented in the case before the Court. The Brief of the Appellees did not cite such a case, nor did the Commission Order or the Decision of the Court of Appeals. The Order and the Decision did cite the cases of Stewart v. Advertising Network Solutions, MWCC No M-1844, 2014 WL (Miss. Work. Compo Com. January 10,2014) and Phelps v. Builders Transport, Inc., 2000 WL (Miss. Work. Compo Com. December 13,2000). Decision, ' It is true that the facts in those cases are similar to this case, but those facts are similar only up to a certain point. The similarity is that the claimants in 3

5 Advertising Network Solutions and Phelps while in Mississippi made the initial contact by telephone to the out-of-state employer, just like Stewart made initial contact in the instant case. Those claimants then trav.eled to the foreign state where they were eventually hired. However, unlike this case, the employers in Advertising Network Solutions and Phelps never pursued those claimants for employment while those claimants were present in Mississippi. In the instant case, once Stewart advised Mr. Fullilove that he was going to work with another company, Stewart was no longer the party seeking a job with Dynamic. Rather, Mr. Fullilove became the party seeking to employ Stewart. Mr. Fullilove became the aggressor at that point and began to actively recruit Stewart in an attempt to hire him and did, in fact, hire Stewart while he was present in Mississippi. Because Stewart was hired in Mississippi and then suffered injuries while temporarily employed in Texas, Mississippi must assert jurisdiction in this cause. 3. Attached hereto as Appendix "A" and made a part hereof is a copy of the opinion and judgment of the Court of Appeals. Attached hereto as Appendix lib" and made a part hereof is a copy of the Motion For Rehearing Of Dalton Ray Stewart filed in the Court of Appeals. WHEREFORE, PREMISES CONSIDERED, Dalton Ray Stewart, Appellant, prays that this Court will grant certiorari in the above styled cause. RESPECTFULLY SUBMITTED, this the 21st day of May, DALTON RAY STEWART By: lsi David N. Gillis David N. Gillis Attorney for Dalton Ray Stewart 4

6 Wayne E. Ferrell, Jr. Mississippi Bar No P. O. Box Jackson, MS Tel: (601) Fax: (601) David N. Gillis (Bar No. 4852) 405 Tombigbee St. Jackson, MS Telephone: Fax: CERTIFICATE OF SERVICE I, David N. Gillis, attorney for Dalton Ray Stewart, do hereby certify that on this day I electronically filed the foregoing Petition For Writ Of Certiorari with the Clerk of the Court using the MEC system which sent notification of such filing to the following: Jill R. Miller RyanJ.Zumo Taylor, Wellons, Politz & Duhe, APLC 8550 United Plaza Blvd., Suite 101 Baton Rouge, LA M. Madison Taylor 100 Webster Circle, Suite 104 Madison, MS Further, I hereby certify that I have mailed by United State Mail, postage prepaid, the document to the following non-mec participant: Mississippi Workers' Compensation Commission, P. O. Box 5300, Jackson, MS THIS, the 21st day of May, lsi David N. Gillis David N. Gillis 5