IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI CASE NO.: 22011-WC-01766-COA FFE TRANSPORTATION SERVICES, INC. and LIBERTY MUTUAL INSURANCE COMPANY APPELLANTS VS. TIM BROWN APPELLEE On Appeal from the Mississippi Workers' Compensation Commission, in Tim Brown, Claimant vs. FFE Transportation Services, Incorporated and Liberty Mutual Insurance Company, Employer/Carrier, MWCC No.: 10 102S8-K-4776-E REPLY BRIEF OF THE APPELLANTS, FFE TRANSPORTATION SERVICES, INC. AND LIBERTY MUTUAL INSURANCE COMPANY, EMPLOYER AND CARRIER JOHN S. GONZALEZ - BAR, NATHAN 1. BURROW - BA DANIEL COKER HORTON & BELL, P.A. POST OFFICE BOX 416 GULFPORT, MISSISSIPPI 39507 PHONE: (228) 864-8117 FAX: (228) 864-6331 ATTORNEYS FOR APPELLANTS
TABLE OF CONTENTS TABLE OF CONTENTS... 11 TABLE OF AUTHORITIES... iii ARGUMENT AND AUTHORITIES... 1 I. INTRODUCTION:... 1 II. THE COMMISSION ERRED IN FiNDING THAT THE MISSISSIPPI WORKERS' COMPENSATION COMMISSION HAS JURISDICTION TO HEAR CLAIMANT'S CLAIM, INASMUCH AS CLAIMANT WAS NOT REGULARLY EMPLOYED IN THE STATE OF MISSISSIPPI... 1 A. Standard of Review... 2 B. The Purported Authorities Relied Upon by Claimant are Either Distinguishable from the Matter Presently Before this Court or Otherwise Inconsistent with the Controlling Case Law... 2 III. CONCLUSION... 7 CERTIFICATE OF FILING................. :................... 8 CERTIFICATE OF SERVICE......................................... 9 -ii-
TABLE OF AUTHORITIES CASE LAW Burnham Van Service, Inc. v. Moore, 164 So. 2d 733 (Miss. 1964)... 5 Cent. Elec. Power Ass'n v. Hicks, 110 So. 2d 351 (Miss. 1959)... 2 L & A Construction Co. V. McCharen, 198 So.2d 240 (Miss. 1967). "....... 1 Loll v. Hudspeth Ctr., 26 So.3d 1044, 1048 (Miss. 2010)... 2 Natchez Equip. Co., Inc. v. Gibbs, 623 So. 2d 270 (Miss. 1993)... 2 Rice v. Burlington Motor Carriers, 839 So. 2d 602 (Miss. Ct. App. 2003)... 1,2,4.5.6 STATUTES Miss. Code Ann. 71-3-109(l)(Rev. 2000)... "... '" 1 COMMISSION DECISIONS Johnson v. Swift Transportation, Inc. and Ace American Ins. Co., MWCC No. 03-11683-H-8132 (Full Commission Order, Mar. 15,2005)...4.5 Payton v. Swift Transportation and Ace American Ins. Co. MWCC No. 04-07633-J-0274-E (Full Commission Order. MaLl. 2006)....4, 5 Phelps v. Builders Transport, Inc. and MS Workers' Compensation Self-Insured Guaranty. MWCC No. 98-07722-G-3058 (Full Commission Order, December 12, 2000)... 3, 4 -iii-
ARGUMENT AND AUTHORITIES I. INTRODUCTION: The Commission's conclusion that Claimant was "regularly employed" in Mississippi was in error. Pursuant to Miss. Code Ann. 71-3-109(1), Claimant was obligated to prove that he was regularly employed in this state in order to establish that the Mississippi Workers' Compensation Commission had jurisdiction over his injury in the State of Louisiana. See L & A Construction Co. V. McCharen, 198 So.2d 240 (Miss. 1967). Claimant failed to satisfy this burden inasmuch as he performed no work for the Employer in this state, and was unable to offer any evidence that Mississippi was to serve as the "base of operations" for his employment. Rice v. Burlington Motor Carriers, Inc., 839 So. 2d 602, 604 (Miss. Ct. App. 2003). Claimant contends that the Commission was correct in concluding that a sufficient employeremployee relationship existed in Mississippi so as to permit the exercise of jurisdiction over Claimant's' out-of-state injury. However, the Employer and Carrier dispute that any employment relationship existed in Mississippi sufficient to constitute regular employment in this state. Rather, Claimant was hired in Texas and dispatched from that location to points all over the country c none of which were shown by Claimant to be within the borders of this state. Claimant's only significant connection with this state was that the Employer allowed him to keep his rig at his home during his down time. Therefore, a correct application of the law with respect to extra-territorial jurisdiction demands dismissal of this action for lack of jurisdiction under the Act. -1-
II. THE COMMISSION ERRED IN FINDING THATTHEMISSISSIPPI WORKERS' COMPENSATION COMMISSION HAS JURISDICTION TO HEAR CLAIMANT'S CLAIM, INASMUCH AS CLAIMANT WAS NOT REGULARLY EMPLOYED IN THE STATE OF MISSISSIPPI A. Standard of Review Claimant contends that the Commission's decision with respect to extra-territorial jurisdiction is entitled to this Court's usual deference, and that said decision must stand if supported by substantial evidence. However, Claimant has failed to consider the critical distinction between the finding of fact and the application oflaw. This Honorable Court must defer to the Commission's findings offact when supported by substantial evidence. See Loll v. Hudspeth Ctr., 26 So.3d 1044, 1048 (Miss. 2010). However, no such deference is owed to the Commission's application of the law. Natchez Equip. Co., Inc. v. Gibbs, 623 So. 2d 270, 273 (Miss. 1993). There is no dispute as to the operative facts of this case. Indeed, a review ofthe pertinent portions of the parties' respective briefs reveals a near-verbatim recitation of the facts. Thus, the issue before this Court is not a factual dispute, but rather how the Commission applied the controlling legal principles to those facts. Such an issue is to be reviewed de novo. Id.; (citing Cent. Elec. Power Ass 'n v. Hicks, 112 So. 2d 230 (Miss. 1959); see also Burlington Motor Carriers, Inc. 839 So. 2d at 602 ("There is no dispute as to the operative facts of the case. The issue of jurisdiction thus becomes a pure question oflaw."). B. The Purported Authorities Relied Upon by Claimant are Either Distinguishable from the Matter Presently Before this Court or Otherwise Inconsistent with the Controlling Case Law. In support of his argument that jurisdiction properly exists in Mississippi, Claimant cites several Commission decisions which are purportedly "on all fours to the case at bar." However, -2-
07722-G-3058 (Dec. 14, 2000). However, the Employer and Carrier fail to appreciate the significance of the Phelps decision in relation to the instant facts. As a practical matter, the Phelps decision resembles the instance case only in that both claims involve resident truckers injured outside of Mississippi. Beyond these basic similarities, critical differences become quickly apparent. As set forth at length in their brief, the Employer and Carrier vehemently dispute the Commission's conclusion that Claimant was "regularly employed" in Mississippi due to the fact that Claimant was to perform no work for the Employer in this state, and received his driving instructions via telecommunication equipment in his rig. In contrast, Phelps was hired by Builders Transport with an explicit understanding that she was to be dispatched from her residence in Gulfport, Mississippi. Id. at * 4. More importantly, Builders Transport maintained a terminal in Picayune, Mississippi, and Phelps was utilize this facility for regular maintenance of her rig. In fact, Phelps was injured on a haul that was routed through Builders Transport's Mississippi terminal! Id. Given the above, the Commission was justified in concluding that Phelps' injury was subject to the extra-territorial jurisdiction of the Act as she was clearly performing work for the employer in this state. Of course, the Commission went one step further in extending jurisdiction to Phelps' extra-territorial injury, and stated as follows: these decisions are distinguishable from the present case, or are not in accord with the decisions of this Court. In particular, Claimant places much emphasis on the Commission's decision in Phelps v. Builders Transport, Inc. and MS Workers' Compensation Self-Insured Guaranty, MWCC No. 98- -3-
We do not consider her eligibility for benefits as depending solely on how many times she operated and parked the truck within the state of Mississippi prior to her injury. Once Ms. Phelps was hired with the understanding she would maintain her residence in Gultport and be dispatched from there, there was created an employment relationship rooted in Mississippi which "is not lost merely on the strength of the relative amount of time spent" in the state of Mississippi prior to her mjury. Id at * 9 (citation omitted). However, this expansive view of "regular employment" was subsequently drawn into question by this Court's holding in Rice v. Burlington Motor Carriers, Inc., 839 So. 2d 602 (Miss. Ct. App. 2003). As set forth in greater detail in the Employer and Carrier's Brief of Appellant, this Honorable Court's opinion in Rice v. Burlington Motor Carriers certainly calls into question the Commission's broad interpretation of "regular employment" as announced in Phelps v. Builders Transport, Inc., supra. In particular, this Court gave little weight to Rice's assertion that he was to be permitted to maintain his rig in Mississippi between hauls, and chose to focus instead on the fact that there was no true connection between Rice's employment and this state. It was noted that there was no evidence "that there was any likelihood that Mississippi would become the focus of any of Rice's duties for Burlington." Burlington Motor Carriers, Inc., 839 So.2d at 604-605. Finally, the Court concluded that the mere fact that Rice was permitted to bring his rig home to Mississippi between assignments was "not the equivalent of an agreement that [Mississippi) would serve as the base of operations for [Rice's] activities." Id. at 604. Subsequent to the Burlington Motor Carriers decision, the Commission handed down two opinions addressing "regular employment" pursuant to 71-3-109(1) in the context of long-haul trucking: Johnson v. Swift Transportation, Inc. and Ace American Ins. Co., MWCC No. 03-11683- -4-
H-8132 (Mar. 15, 2005) and Payton v. Swift Transportation, Inc. and Ace American Ins. Co., MWCC No. 04-07633-J-0274-E(Mar. 1,2006). Given that both cases involved the same employer, Swift Transportation, it is unsurprising that the operative facts are virtually identical. Nevertheless, the Commission reached polar opposite conclusions with respect to jurisdiction. In Johnson v. Swift Transportation, Inc., the Commission extended extra-territorial jurisdiction to the claimant based upon their pre-burlington Motor Carriers understanding of "regular employment" as set forth in Philips v. Builders Transport, supra. See Johnson, MWCC No. 03-11683-H-8132, * 4. Specifically, the Commission was willing to overlook the fact that Swift Transportation was headquartered in Arizona, and maintained no physical locations in Mississippi, and instead seized upon the fact that Johnson was a life-long resident of Mississippi and was permitted to return to his home in Mississippi between hauls. Id at *3 -*4. The Commission further distinguished the matter from the situation before this Court in Rice v. Burlington Motor Carriers, based upon the fact that Rice was to be based in Atlanta. Id at * 6. Accordingly, the Commission concluded that the facts were more consistent with those before the Mississippi Supreme Court in Burnham Van Service, Inc. v. Moore, 164 So. 2d 733 (Miss. 1964). Inexplicably, less than a year later, the Commission reached the opposite conclusion based upon the exact same set of facts in Payton v. Swift Transportation, Inc. and Ace American Ins. Co., MWCC No. 04-07633-J-0274-E (Mar. 1, 2006). Payton was hired out of Swift Transportation's Memphis, Tennessee location, but instructed to keep her truck at her residence in Greenville, Mississippi between assignments. Id at *2. Payton's driving assignments were to be sent to her via a computer terminal in her rig. Id When Payton was subsequently injured in Pennsylvania, the Commission upheld the dismissal of her claim for lack of jurisdiction based upon "an insufficient -5-
nexus between Mississippi and the circumstances of both [Payton's] employment and her workrelated injury to establish jurisdiction" in Mississippi. ld. * 3 (citing Rice v. Burlington Motor Carriers, Inc., 839 So. 2d 602 (Miss. 2003). Accordingly, to the extent Claimant cites the Johnson decision to support of his position that the Commission decided the instant matter correctly, the Employer and Carrier can readily cite Payton v. Swift Transportation for the opposite conclusion. The preceding examples clearly establish that the Commission's analysis and application of 71-3-109(1) is either flawed or inconsistent with the existing legal precedent. At times, the Commission has relied upon the Supreme Court's holding in Burnham Van Service, Inc. v. Moore, and its own subsequent opinion in Phelps v. Builders Transport, Inc., to justify extending extraterritorial jurisdiction to virtually any Mississippi resident working out of state. In so doing, the Commission has, at times, disregarded this Court's decision in Rice v. Burlington Motor Carriers, and failed to consider whether the employee is reasonably expected to perform any work activities within this state. Accordingly, the Employer and Carrier question what, if any, guidance may be offered by the Commission's previous decisions. It is the position of the Employer and Carrier that the Commission misapprehended the legal precedent set forth in Rice v. Burlington Motor Carriers, supra, and thus erred in failing to dismiss the present matter for lack of jurisdiction. Fortunately, this Honorable Court is not bound by the Commission's conclusions as to the legal effect of the evidence. Therefore, the Employer and Carrier would respectfully request that this Court reaffirm its holding in Rice v. Burlington Motor Carriers, 839 So. 2d 602 (Miss. 2003), that Claimant's status as a Mississippi resident is not sufficient, in itself, to confer jurisdiction under the Act. Rather, there must be some evidence of an agreement, implicit or express, that Mississippi was to serve as Claimant's base of operations, or, -6-
that Mississippi was otherwise to become the focus of at least some of his activities for the Employer. Claimant is unable to establish either criteria, and thus the Commission is without jurisdiction to hear this matter. III. CONCLUSION The Employer and Carrier contend that the Claimant has failed to establish that he was "regularly employed" within this State, and thus there is no basis upon which to extend extraterritorial jurisdiction over Claimant's out-of-state injury. Therefore, this matter should be dismissed. RESPECTFULLY SUBMITTED, this the 11'0/" '"1: day of August, 2012. FFE TRANSPORTATION, INC. & LIBERTY MUTUAL INSURANCE CO. BY: BY: -7-
CERTIFICATE OF FILING We, John S. Gonzalez and Nathan L. Burrow, of counsel for FFE Transportation, Inc. and Liberty Mutual Insurance Company, Employer and Carrier/Appellants, do hereby certify that we have on this date filed with the Clerk of the Supreme Court of the State of Mississippi, the following: I. The original and three (3) copies of the Reply Brief of Appellants; 2. A copy of said Memorandum Brief on electronic disk. THIS, the 1±-%y of August, 2012. -MS~ DANIEL COKER HORTON & BELL, P.A. 1712 15 th STREET, SUITE 400 POST OFFICE BOX 416 GULFPORT, MISSISSIPPI 39502-0416 TELEPHONE (228) 864-8117 FACSIMILE (228) 864-6331 -8-
CERTIFICATE OF SERVICE We, John S. Gonzalez and Nathan L. Burrow, of counsel for FFE Transportation, Inc. and Liberty Mutual Insurance Company, Employer and Carrier/Appellants, do hereby certify that we have on this datemailed,viafirst Class U.S. mail, a copy of the Reply Brief ofthe Appellants to: James K. Wetzel, Esq. Wetzel & Associates 170 I 24th Avenue Gulfport, MS 39501 Chairman Liles Williams Mississippi Workers' Compensation Commission 1428 Lakeland Drive Jackson, MS 39216 Commissioner John Junkin Mississippi Workers' Compensation Commission 1428 Lakeland Drive Jackson, MS 39216 Commissioner Debra Gibbs DANIEL COKER HORTON & BELL, P.A. 1712 15 th STREET, SUITE 400 POST OFFICE BOX 416 GULFPORT, MISSISSIPPI 39502-0416 TELEPHONE (228) 864-8117 FACSIMILE (228) 864-6331 -9-