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Accu-Fab & Construction3/14/2000
conditions of his surroundings and the demands of his work, under either theory Ladner was exposed to the dangers of the open hole created by Accu-fab. With this testimony in mind, this Court also notes that some witnesses espoused that if Ladner were aware of the hole he should have ceased working and notified someone of the necessity to barricade or cover the hole. Accu-fab has cited case law in an attempt to support its argument; however, this Court finds all of these cases to be inapplicable since they are distinguishable from the case at bar. Therefore, upon reviewing all of the evidence presented, in the light most consistent with the verdict, we find that the jury's apportionment of five percent fault to Ladner was not against the overwhelming weight of the evidence. The trial judge did not abuse his discretion in denying Accu-Fab's motion for a new trial. Accordingly, we find this assignment of error to lack merit.
. Finally, the insurer of Bracken Construction Company, Employers' Insurance of Wausau, intervenes in the motion for rehearing, not surprisingly, to endorse the position of Bracken that apportionment of damages was properly disallowed against Bracken by the trial court, and that the issues presented by Anderson and Accu-fab on rehearing be denied. These issues, of course, are disposed of in our discussion of the arguments presented by Bracken, Accu-fab, and Anderson.
. We turn now to Anderson's remaining issues.
III. WHETHER ROY ANDERSON WAS ENTITLED TO STATUTORY IMMUNITY UNDER MISSISSIPPI WORKERS' COMPENSATION ACT.
. Roy Anderson has argued an entitlement to statutory immunity under this State's Workers' Compensation Act. Because Miss. Code Ann. § 71-3- 9 (Rev. 1995) makes workers' compensation the exclusive remedy against an employer for a job related action, no other civil action may be brought against the employer. This immunity from civil action also extends to statutory employers. Miss. Code Ann. § 71-3-7 (Rev. 1995). A statutory employer, as set forth in § 71-3-7, is a general contractor who is obligated to provide workers' compensation coverage to the employees of his subcontractor not covered by a workers' compensation policy. However, Miss. Code Ann. § 71-3-5 (Rev. 1995) provides that this State's Workers' Compensation Act does "not apply to transportation and maritime employments for which a rule of liability is provided by the laws of the United States."
. A covered employee under the Longshore and Harbor Workers' Compensation Act "means any person engaged in maritime employment including . . . any harbor workers including a ship repairman, shipbuilder." 33 U.S.C. § 902(3). At the time of injury, Ladner was engaged in the construction of a vessel upon a navigable waterway, and as such he was covered by the LHWCA. The parties agreed during argument on a motion for summary judgment that there was no immunity if Ladner was covered under the LHWCA. Having found Ladner to be covered by the LHWCA, this Court holds there was no immunity. Congress has mandated coverage for injured maritime workers under the LHWCA . 33 U.S.C. § 901. Because Congress has spoken to this matter, our Workers' Compensation statute specifically excludes it. There is, therefore, no immunity available to Anderson.
IV. WHETHER THE TRIAL COURT ERRED IN EXCLUDING RESULTS OF DRUG TESTS AND OTHER EVIDENCE OF DRUGS, AS WELL AS EVIDENCE OF PRIOR CONVICTIONS.
. Anderson and Accu-Fab contend that the evidence of marijuana in Ladner's body should have been admitted as evidence of his contribution to his injuries. The trial court disallowed this evidence. We sustain the trial court's finding.
. When Ladner was taken to t
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