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Hurdle v. Holloway6/19/2003
uit court's order denying the Hurdles' motion for summary judgment, and we render summary judgment here for the Hurdles finally dismissing Michael Holloway's complaint and this action with prejudice.
. REVERSED AND RENDERED.
PITTMAN, C.J., SMITH, P.J., COBB, EASLEY, CARLSON AND GRAVES, JJ., CONCUR. McRAE, P.J., DISSENTS WITH SEPARATE WRITTEN OPINION. DIAZ, J., NOT PARTICIPATING.
McRAE, PRESIDING JUSTICE, DISSENTING:
. The majority erroneously finds that the Workers' Compensation Act is the exclusive remedy for Michael Holloway for injuries he sustained in an auto accident because he "was acting in the course and scope of his employment when he was injured, his injuries were not the result of an intentional tort, and his injuries were compensable under the Act. . . ." (Maj. Op. & n.4 (citing Miller v. McRae's, Inc., 444 So. 2d 368, 471 (Miss. 1984)). Since I believe summary judgment is inappropriate and Holloway is entitled to proceed with his personal injury action, I dissent.
. In making its findings, the majority incorrectly relies on the holding in Hurdle & Son v. Holloway, 749 So. 2d 342 (Miss. Ct. App. 1999), a Court of Appeals decision which only addressed whether Holloway was entitled to workers' compensation benefits. In that opinion, the Court of Appeals never addressed the validity of a personal injury suit. Additionally, a thorough reading of the opinion provides evidence which would support the trial court's denial of the motion for summary judgment. Furthermore, in order to be entitled to workers' compensation benefits a party must only satisfy a "substantial evidence" standard, which in no way precludes the assertion that such injuries are not exclusively in the realm of the statute, but may also support a personal injury action.
. The majority finds that Holloway was acting in the course and scope of his employment when he was injured. This is wrong for two reasons. First, Holloway's injuries did not occur within the course and scope of his employment. " n injury occurs 'in the course of employment when it takes place within the period of employment, at a place where the employee reasonably may be in the performance of his duties, and while he is fulfilling those duties or engaged in doing something incidental thereto, or, as sometimes stated, where he is engaged in the furtherance of the employer 's business.' " Bivens v. Marshall R. Young Drilling Co., 251 Miss. 261, 273, 169 So. 2d 446, 450 (1964) (quoting 58 Am.Jur. Workmen's Compensation § 212 (1948)). There is disputed testimony and evidence as to whether "Michael Holloway agreed to assist in working on the truck as a personal favor to Sam Hurdle or whether his work was a required duty as a part of his employment." Holloway, 749 So. 2d at 345. In fact, " he testimony of J. K. Hurdle makes clear that he did not consider repair of the truck to be something vital to the furtherance of the farming operation." Id. at 347. The accident which precipitated Holloway's injuries occurred a few hundred yards from the Hurdle property. Id. at 345. Both Sam Hurdle and Holloway were drinking at the time of the accident. Id. " he work on the truck and the ensuing accident both took place outside of Michael Holloway's normal work hours." Id. at 347. Under all of these facts, a jury could find that Holloway was not in the course and scope of his employment at the time of the accident. The fact that the Court of Appeals in Hurdle & Sons v. Holloway, found that Holloway was entitled to workers' compensation benefits is of no consequence and does not decide the issues pertaining to the civil personal injury action.
. Second, the going and coming rule is applica
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