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Accu-Fab & Construction3/14/2000
th Bracken. Since Ladner was an employee of Bracken, it had been agreed that any injuries suffered by Ladner would be compensated under workers' compensation and not an action for negligence. Due to workers' compensation law, Bracken could not have been engaged in this civil action by the representative for the estate of Ladner. Additionally, we note that not only is Bracken immune, but since it paid workers' compensation benefits, it would also have a subrogation claim against the monetary damages awarded to Ladner. Since Bracken is limited in liability, to allocate a percentage of responsibility to Bracken is a deception on the jury. If the jury apportioned a percentage of fault to Bracken they would presume that Bracken would pay their percentage relative to the monetary damages award, and contrary to this presumption, no further compensation can be acquired from Bracken. In turn, Ladner is denied the compensation he deserves. It is wholly inequitable for the plaintiff to suffer the risk of a partial or complete reduction in recovery. It is improper to allow the jury to have the right to apportion damages to Bracken when the result is to limit Ladner's damages due to the policies of workers' compensation law which forbids additional benefits beyond those statutorily awarded, and at the same time any fault apportioned amongst the other parties returns to Bracken as the employer due to its right of subrogation. Additionally, Anderson and Accu-Fab had the opportunity to expose any theory of fault relative to Bracken at the time of the trial. Anderson and Accu-fab were given the opportunity to cross-examine employees for Bracken relative to occurrences prior to the death of Ladner. The jury had the benefit of this information and found that Ladner bore five percent of the responsibility in the events that resulted in his death. As employees, Ladner and his co-workers were the alter-ego of Bracken. Consequently, since the jury had the benefit of the testimony of the employees for Bracken, there was a constructive apportionment when the jury found five percent liability on the part of Ladner inasmuch as Bracken can only act through its agents and employees. It is for the aforementioned reasons that Anderson and Accu- Fab should not be allowed to benefit from the relationship that existed between Ladner and Bracken and deny Ladner the compensation that has been awarded by the jury. Therefore, we find the decision of the trial court to be proper and this issue without merit. Having resolved this issue, the following additional errors were assigned by Anderson:
MISSISSIPPI PROVIDES TO CONTRACTORS, WHOSE SUBCONTRACTORS CARRY WORKERS' COMPENSATION INSURANCE, IMMUNITY FROM LIABILITY FOR A STATE LAW WRONGFUL DEATH NEGLIGENCE CLAIM BROUGHT BY A SUBCONTRACTOR'S EMPLOYEE 'S SURVIVORS. FEDERAL LAW (THE LONGSHORE AND HARBOR WORKERS' COMPENSATION ACT (LHWCA)) DOES NOT. WHERE THE SURVIVORS OF A LONGSHOREMAN/CONSTRUCTION WORKER, WHO IS COVERED BY BOTH THE MISSISSIPPI WORKERS' COMPENSATION ACT AND THE LHWCA, ELECT TO RECEIVE LHWCA BENEFITS, IS THE CONTRACTOR STRIPPED OF ITS IMMUNITY UNDER STATE LAW FROM STATE LAW CLAIMS?
WHERE A CONSTRUCTION WORKER FELL THROUGH A SIX-FOOT-WIDE HOLE IN PLAIN DAYLIGHT, AND HIS SURVIVORS BROUGHT A WRONGFUL DEATH CIVIL ACTION FOR NEGLIGENCE, DID THE TRIAL COURT REVERSIBLY ERR IN EXCLUDING EVIDENCE OF A URINE TEST WHICH WAS POSITIVE FOR MARIJUANA AT THE TIME OF HIS FALL AND OF A MARIJUANA CIGARETTE FOUND IN HIS POCKET AFTER THE ACCIDENT, REGARDLESS OF WHETHER CONSENT WAS OBTAINED TO TAKE THE URINE SAMPLE?
WHETHER OSHA REGULATIONS ARE ADMISSIBLE AS EVIDENCE OF NEGLIGENCE?
WHERE A SUBCONTRACTOR BEGINS PERFORMING PRIOR TO THE EXECUTION OF A STANDARD GENERAL CONTRACT
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