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Accu-Fab & Construction3/14/2000
per findings of fact and law relative to the aforementioned issues. Therefore, we affirm the judgment of the trial court.
. THE JUDGMENT OF THE JACKSON COUNTY CIRCUIT COURT IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED EQUALLY BETWEEN ANDERSON AND ACCU-FAB.
BRIDGES, DIAZ, PAYNE, AND THOMAS, JJ., CONCUR. IRVING, J., CONCURRING IN PART AND DISSENTING IN PART JOINED BY KING, P.J. MCMILLIN, C.J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY SOUTHWICK, P.J. MOORE, J., NOT PARTICIPATING.
McMILLIN, C.J., DISSENTING:
. I respectfully dissent. The question of whether "fault" within the meaning of Section 85-5-7 can be apportioned to an entity not a party to the litigation has been answered in the affirmative by the case of Estate of Hunter v. General Motors, 729 So. 2d 1264 (Miss. 1999). The majority of this Court errs when it relies upon a proposed definition of the word "party" contained in the dissent in Estate of Hunter to suggest that Bracken's unavailability as a defendant in the tort action precluded the jury from calculating Bracken's percentage of fault in Ladner's death. We, as an intermediate appellate court, are obligated to follow the precedents contained in decisions of the Mississippi Supreme Court.
. In Estate of Hunter, the supreme court considered whether the use of the term "party" in Section 85-5-7 meant that an alleged wrong-doer had to be a party to the litigation in order to have fault assigned to it. The court concluded that the Legislature intended the term only as a single-word means of identifying any of the multiple entities capable of being adjudicated at fault, whether an individual or some recognized legal entity such as a corporation. Id. at 1276 ( ). Justice McRae, writing in dissent, urged a contrary interpretation of the word "party" as referring to an entity lawfully before the court and subject to the court's jurisdiction. Id. at 1281 ( ). In that situation, no matter how compelling the members of this Court might find Justice McRae's argument, we simply are not at liberty to adopt it in this situation. Rather, we must concede the issue to the majority's view contained in the opinion of the court.
. Having determined that Estate of Hunter admits of the possibility that Bracken could have some fault apportioned to it even though it was not a party to the litigation, we ought then to turn to the related question of whether the decision in that case requires the jury to consider the potential degree of negligence of an employer enjoying immunity under workers compensation law. In my view, the reasoning in Estate of Hunter does not necessarily compel the same result in this case. To a large extent, Estate of Hunter was decided based upon policy considerations of fundamental fairness rather than principles of logical interpretation of statutory language. That policy consideration was the inherent unfairness seen to arise from refusing to permit fault to be allocated to a settling defendant. In the view of the supreme court, this gave rise to the possibility that the plaintiff would purposely agree to a nominal settlement against an indigent defendant, even though that defendant had substantial culpability in causing the injury, in order to preserve the potential for a larger recovery from a less culpable defendant with deeper pockets. Id. at 1273 ( ).
. The same considerations of policy do not arise in the context of this case. When the absent defendant is the injured party's employer , that employer is exempt from suit by statute and the inclusion or exclusion of the employer is not a matter subject to manipulation by the injured employee .
. A different policy consideration a
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