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Hurdle v. Holloway6/19/2003
ble to this very situation. " he general rule that the hazards encountered by employees while going to or returning from their regular place of work and off the employer's premises are not incident to employment and accidents arising therefrom are not compensable." Stepney v. Ingalls Shipbuilding Div., Litton Sys., Inc., 416 So. 2d 963, 964 (Miss. 1982) (quoting Miller Transporters, Inc. v. Seay's Dependents, 350 So. 2d 689 (Miss. 1977)). One exception to this general rule is "where the employer furnishes the means of transportation, or remunerates the employee." Id. (quoting Wallace v. Copiah County Lumber Co., 223 Miss. 90, 99, 77 So. 2d 316, 318 (1955)). However, this exception does not apply "when the transportation is nothing more than a one-time or infrequent occurrence." Holloway, 749 So.2d at 348. See also Arnold v. Wright, 80 N.Y.S.2d 808, 808 (N.Y. Sup. Ct. 1948); Arthur Larson & Lex Larson, Larson's Workers' Compensation Law § 15.03 (1999). Holloway normally rode to work with his uncle. 749 So. 2d at 349. He rarely, if ever, rode to and from work with Sam Hurdle. Id. Under these facts, a jury could find Holloway was not in the course and scope of his employment at the time of the accident.
. The majority finds that Holloway's injuries were not the result of a willful act or intentional tort and that, therefore, the intentional tort exception to the Workers' Compensation Act is not applicable. The majority further finds that the injuries sustained by Holloway are compensable injuries under the Act. As a preliminary matter, it is worth noting that the Court of Appeals when ruling on Holloway's entitlement to workers' compensation benefits did not address the applicability of the intentional tort exception. " t was never the intention of the Workmen's Compensation Act to bar an employee from pursuing a common law remedy for an injury that is the result of a willful and malicious act." Miller, 444 So. 2d at 371. " here an injury is caused by the willful act of an employee acting in the course and scope of his employment and in the furtherance of his employer 's business, the Workmen's Compensation Act is not the exclusive remedy available to the injured party." Id. This exception for willful and intentional acts which cause injury, is predicated on the fact that injuries which result from such acts are not compensable injuries under the Workers' Compensation Act. Newell v. Southern Jitney Jungle Co., 830 So. 2d 621, 624-25 (Miss. 2002) (citing Miller, 444 So.2d at 371-72)). The majority misstates this Court's ruling in Newell, by asserting that the two-prong inquiry which was taken from Miller is still the applicable law. A thorough reading of Newell, indicates that we have abandoned the two -prong inquiry after reviewing the holding in Miller. In Newell, we specifically stated that:
This Court thus writes further today to clarify a misinterpretation of the exclusivity test by prior opinions of this Court. . . .
The two prongs as stated in cases after Miller are as follows: (1) the injury must have been caused by the willful act of another employee acting in the course of employment and in the furtherance of the employee's business; [and/or] (2) the injury must be one that is not compensable under the act. Miller, in fact, does not state a two-part test, whether it be joined by the word "and" or "or."
Rather, the only test articulated in Miller is whether the injury is compensable under the act. The Court's entire discussion in that case, from which we later articulated a two-part test, was an effort to answer that sole question-compensability of the injury. A close reading of Miller reveals that the first prong of the test is not a separate requirement as we
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