United States Court of Appeals
Fifth Circuit
F I L E D
REVISED JULY 28,2005
July 14, 2005
IN THE UNITED STATES COURT OF APPEALS
Charles R. Fulbruge III
FOR THE FIFTH CIRCUIT Clerk
No. 05-60028
ERICA WILLIS TANKS, as Administrator of
the Estate of THOMAS WILLIS, as Personal
Representative of THOMAS WILLIS, for the
Benefit of All Heirs of THOMAS WILLIS, and
as natural daughter of THOMAS WILLIS,
Plaintiff-Appellee,
versus
LOCKHEED MARTIN CORP; ET AL,
Defendants,
LOCKHEED MARTIN CORP.; LOCKHEED MARTIN
AERONAUTICAL SYSTEMS SUPPORT CO., doing
business as LOCKHEED MARTIN AERONAUTICS
COMPANY-MARIETTA,
Defendants-Appellants.
--------------------
Appeal from the United States District Court
for the Southern District of Mississippi
--------------------
Before WIENER, DeMOSS, and PRADO, Circuit Judges.
WIENER, Circuit Judge.
Defendants-Appellants Lockheed Martin Corp. and Lockheed
Martin Aeronautical Systems Support Co. (“Lockheed”) took this
interlocutory appeal, certified by the district court pursuant to
28 U.S.C. § 1292(b), seeking reversal of the district court’s
partial summary judgment in favor of Plaintiff-Appellant Erica
Tanks. The district court held that, under the discrete facts and
circumstances of this case, the “exclusive remedy” provision of the
Mississippi Workers’ Compensation Act (“MWCA” or “the Act”),1 which
generally precludes an employee from recovering from his employer
on a state law tort cause of action, does not preclude Tanks from
pursuing against Lockheed her state tort cause of action based on
the workplace death of her father, Thomas Willis (“Willis” or
“decedent”). The district court nevertheless certified, for
interlocutory appeal, the question whether the MWCA provides the
exclusive remedy for Tanks’s state law claims. Our grant of
Lockheed’s appeal on the single issue thus certified limits our
review to that question.
As an initial matter, we disagree with the district court’s
view that the question it certified to us is an open one under
these circumstances, and thus decline to certify it further to the
Supreme Court of Mississippi. Deciding this question as we believe
the Supreme Court of Mississippi has and would, we conclude that,
under the current state of the applicable Mississippi
jurisprudence, Willis’s death —— which was a result of the willful
act of a co-worker while both men were on the job —— is compensable
under the MWCA. This in turn makes compensation under the MWCA
1
Miss. Code Ann. § 71-3-1, et seq., (2004). All Code
references are to the 2004 Mississippi Code Annotated unless
otherwise indicated.
2
Tanks’s exclusive remedy against Lockheed. We therefore reverse
the non-exclusivity ruling of the district court vis-à-vis Tanks’s
state law tort claims, render a partial summary judgment for
Lockheed, dismissing Tanks’s state law claims, and remand this case
for proceedings on the federal claims advanced in her Third Amended
Complaint.
I. FACTS AND PROCEEDINGS
This case arises from a horrific tragedy that occurred in July
2003, at Lockheed’s plant in Lauderdale County, Mississippi. At
the time, the decedent was an assemblyman who had been employed by
Lockheed for more than 33 years; a co-worker, Douglas Paul
Williams, was also an assemblyman in that plant and had been
employed by Lockheed for 19 years. Willis, who was black, and
Williams, who was white, regularly worked in close proximity to
each other. Both perished at Lockheed’s plant from gunshot wounds
inflicted by Williams in the course of a shooting spree during
which Williams killed or wounded several of his co-workers before
turning one of his guns on himself. In addition to the decedent,
a number of other Lockheed employees —— some black, some white ——
were shot by Williams during the course of his rampage: Some of
the other victims died from their gunshot wounds; others survived.
Like the decedent and Williams, all the other victims were Lockheed
employees who were at the plant and at work at the time that they
were shot.
3
In her original diversity-jurisdiction tort complaint filed in
district court, and again in her Third Amended Complaint, Tanks
related numerous factual allegations detailing Williams’s
longstanding and widely-known bigotry against his African-American
“co-workers.” Her complaints are entirely devoid, however, of
allegations of any demonstrated racial animus or overt acts against
African-Americans, either co-workers or non co-workers, anywhere
outside the Lockheed plant site. Stated differently, Tanks’s
allegations of Williams’s hatred, prejudice, and bigotry towards
blacks exclusively address his co-workers and his workplace. For
example, she alleged that Williams harbored racial hatred towards
his African-American “co-workers”; that he was known to be violent
towards his “co-workers”; that Lockheed was aware of Williams’s
animus towards his “co-workers and Lockheed’s management at the
Plant”; that Williams “came to work and parked in the employee
parking lot with loaded firearms in his truck”; that he informed
Lockheed of his hatred towards his “co-workers,” warning that, if
his being required to work with blacks were not alleviated,
“violent consequences could occur”; that he had made threatening
remarks to African-American “co-workers”; that he and a fellow
white “co-worker” had attempted to intimidate their African-
American “co-workers”; that Williams instigated racial taunts and
abuse towards his African-American “co-workers”; and on and on. In
essence, all of Tanks’s allegations that implicate Williams’s overt
racism and anti-black animus are made exclusively in the context of
4
the workplace and his “co-workers,” black and white. These
allegations are obviously intended to support Tanks’s state tort
claims (and, eventually, federal discrimination claims) against
Lockheed, grounded in, inter alia, negligence, gross negligence,
willful and wanton inaction in the face of longstanding knowledge
of Williams’s condition and the threat to the safety of co-workers
on the job.
After limited discovery, Lockheed moved for partial summary
judgment on the pleadings and several uncontested facts submitted
by it, including its compliance with its MWCA duty to insure its
liability for workers’ compensation benefits. Lockheed argued
that Williams’s injury is compensable under the MWCA, and,
consequently, that Lockheed is entitled to immunity from Tanks’s
other state tort law claims on the basis of the Act’s exclusive
remedy provision. The district court nevertheless agreed with
Tanks that Willis’s death was not compensable under the Act and
denied summary judgment. Lockheed moved for reconsideration or, in
the alternative, certification of the question for interlocutory
appeal. The district court denied reconsideration but certified
the action for interlocutory appeal. In granting the motion for
interlocutory appeal, the district court identified as a material
legal question under 28 U.S.C. § 1292(b) the compensability of
Willis’s fatal injury under the MWCA, characterizing the state of
the law as unsettled, and noting the centrality of the question to
5
the claims and this court’s authority to certify such a question to
the Supreme Court of Mississippi.
II. ANALYSIS
A. Standard of Review
The district court certified its decision for interlocutory
appeal, and we granted Lockheed’s motion for leave to appeal the
district court’s denial of its motion for summary judgment pursuant
to our authority under 18 U.S.C. § 1292(b). Although we ordinarily
review a district court’s summary judgment ruling de novo,2 our
appellate jurisdiction under § 1292(b) extends only to controlling
questions of law, thus, we review only the issue of law certified
for appeal.3 We therefore determine de novo whether the district
court properly interpreted the MWCA, using the same method of
interpretation as would the Mississippi Supreme Court.4
B. Interpreting the MWCA
The district court denied Lockheed’s motion for summary
judgment, concluding that, even though Mississippi case law
interpreting the MWCA is unclear, the decedent’s injuries were not
compensable under the Act. Therefore, reasoned the court, the
MWCA’s exclusive remedy provision did not bar Tanks from pursuing
2
MacDonald v. Monsanto, 27 F.3d 1021, 1023 (5th Cir. 1994).
3
Malbrough v. Crown Equip. Corp., 392 F.3d 135, 136 (5th
Cir. 2004).
4
See La. Patients’ Comp. Fund Oversight Bd. v. St. Paul
Fire & Marine Ins. Co., No. 04-30591, 2005 U.S. App. LEXIS 10431
at *6 (5th Cir., June 7, 2005).
6
other state law remedies. We agree with the district court’s
thorough discussion of Mississippi case law,5 including its
determination that an earlier line of decisions, beginning with
Mutual Implement & Hardware Insurance Co. v. Pittman6 in 1952,
appears to conflict with a later line, commencing with Miller v.
McRae’s7 in 1984. We shall not retrace the district court’s
careful analysis except to reiterate briefly the rules that
undergird our decision.
1. Elements of Proof: Compensability for Co-Worker Assault
under the MWCA
Under the MWCA and the Mississippi jurisprudence that has
evolved over the past six decades, if the injury (here, death) is
compensable under the Act, compensation under the MWCA is the
exclusive state law tort remedy available to the employee or his
successors.8 Courts determine whether a plaintiff is entitled to
compensation under the MWCA or whether his other tort claims are
barred by the MWCA’s exclusivity provision, by inquiring only
“whether the injury is compensable under the act.”9 The sole issue
5
See Tanks v. Lockheed-Martin Corp., 332 F. Supp. 2d 953,
956-64 (S.D. Miss. 2004).
6
59 So. 2d 547 (Miss. 1952).
7
444 So. 2d 368 (Miss. 1984).
8
Miss. Code Ann. § 71-3-9; Hurdle v. Holloway, 848 So. 2d
183, 185 (Miss. 2003).
9
Newell v. S. Jitney Jungle Co., 830 So. 2d 621, 625 (Miss.
2002).
7
before us, then, is whether Willis’s injury, i.e., his death from
the intentional shooting at the hands of a co-worker while both
were at work, is compensable under the Act.
Under § 71-3-7 of the MWCA, an employer is liable to pay
compensation for the disability or “death of an employee from
injury...arising out of and in the course of [his] employment,
without regard to the fault as to the cause of the injury....”10
In the definitional section of the Act (§ 71-3-3), subsection (b)
defines “injury” to mean
accidental...death arising out of and in the course of
employment without regard to fault which results from an
untoward event...if contributed to or aggravated or
accelerated by the employment in a significant
manner....Untoward event includes events causing
unexpected results. An untoward event or events shall
not be presumed to have arisen out of and in the course
of employment, except in the case of an employee found
dead in the course of employment.
The final narrowing of the focus of this definition is found in the
ensuing sentence in § 71-3-3(b): “This definition...includes an
injury caused by the willful act of a third person directed against
an employee because of his employment while so employed and working
on the job....”11
Despite this explicit language defining injury to include
willful acts by a third party, the Mississippi Supreme Court’s
Pittman line of cases, beginning shortly after enactment of the
10
Miss. Code Ann. § 71-3-7 (emphasis added).
11
Emphasis added.
8
MWCA in 1942, implicitly relied on a presumption that willful
assaults by co-workers were accidental.12 In Pittman, the court
held such attacks to be risks “incident to employment of many
persons” and therefore compensable under the MWCA.13 In Pittman and
later cases, the Mississippi court focused on whether an assault
arose “out of and in the course of employment” rather than focusing
on the intent of the assailant.14
In 1984, however, “[a] shift in the focus of the inquiry, and
in the court’s view of what is ‘accidental,’ began.”15 In Miller,
the Mississippi Supreme Court decided that a claim for damages
resulting from false imprisonment arose not from an accident but
from a willful act, making it necessary to determine whether such
an intentional act was encompassed within § 71-3-3(b)’s definition
of compensable injury, viz., whether it was “an injury caused by
[1] the willful act [2] of a third person [3] directed against an
employee [4] because of his employment [5] while so employed and
12
Tanks, 332 F. Supp. 2d at 958 (“In Hutto, as in
Watson and Pittman, the court obviously considered the shooting
to have been ‘accidental,’ at least from the victim’s standpoint.
..”)(citing Watson v. Nat’l Burial Ass’n, Inc., 107 So.2d 739
(Miss. 1958); Kerr-McGee Corp. v. Hutto, 401 So. 2d 1277 (Miss.
1981)).
13
Pittman, 59 So. 2d at 553 (quoting Verschleiser v. Joseph
Stern Son, Inc., 128 N.E. 126, 127 (N.Y. 1920).
14
Tanks, 332 F. Supp. 2d at 958.
15
Id.
9
working on the job...”16 A “third person,” the court concluded,
includes a co-worker who is not acting in the course and scope of
his employment and in furtherance of the employer’s business.17
Here, in summarizing the Miller line of cases, the district
court explained when intentional assaults by third parties or co-
workers acting outside the course and scope of their employment are
compensable under the MWCA:
[I]f in committing an assault, the
employee/assailant was acting outside the course
and scope of his employment, his status is viewed
as analogous to that of a stranger to the
employment relationship, and his act falls within
the coverage of the Act, and subject to the
exclusivity bar, only if directed against an
employee “because of his employment while so
employed and working on the job.”...On the other
hand, if in committing an assault, the
employee/assailant was acting in the course and
scope of his employment and in furtherance of his
employer's business, then the injury caused thereby
is not compensable under the Act, and consequently
the exclusivity bar does not apply.18
There is no question that three of the five Miller elements
are satisfied in this case: Williams’s actions were (1)
intentional and (2) directed at Willis (3) while Willis was “so
16
Miller, 444 So.2d at 370-71.
17
Id. at 371. This interlocutory appeal of the district
court’s ruling, which is grounded in Tanks’s original complaint
only, does not implicate the federal constitutional and statutory
claims that Tanks raised in her Third Amended Complaint, even
though, for purposes of this appeal, Lockheed accepts as true all
relevant facts alleged in Tanks’s Third Amended Complaint.
18
Tanks, 332 F. Supp. 2d at 962-63.
10
employed and working on the job.”19 As for the first of the two
remaining Miller elements, the district court concluded ——
correctly —— that Williams must be considered a third party because
he acted “outside the course and scope of his employment.”20 But
as for the second remaining Miller element, the district court
concluded —— incorrectly under Miller —— that, despite the fact
that Williams acted outside the course and scope of his employment,
judgment of dismissal could not be granted to Lockheed on the basis
of the MWCA’s exclusivity bar. The court’s expressed reason was
its inability to discern allegations or evidence suggesting that
Williams’s actions “were directed against his victims ‘because of
their employment.’”21 In contrast, we perceive a plethora of both.
We shall, therefore, address in more depth these final two
elements, viz., (1) whether Williams acted in the course and scope
of his employment and (2) whether Willis was injured because of his
employment.
2. Acting Outside the Course and Scope of Employment; “Third
Party” Status under the MWCA
We agree with the district court that Williams’ actions were
outside of the course and scope of his employment and must
therefore be characterized as the acts of a third person.22 The
19
Miss. Code Ann. § 71-3-3(b).
20
Id.
21
Tanks, 332 F. Supp. 2d at 964 (emphasis added).
22
See Miller, 444 So.2d at 371.
11
Mississippi Supreme Court defines actions taken in the “course and
scope” of employment with respect to respondeat superior tort
liability as acts “committed in the course of and as a means to
accomplishing the purposes of the employment and therefore in
furtherance of the master’s business...[or] tortious acts
incidental to the authorized conduct.”23 An employee’s unauthorized
acts may yet be within the course and scope of employment if they
are of the “same general nature as the conduct authorized or
incidental to that conduct.”24 An intentional violent assault on
a co-worker is quite obviously neither committed as a means of
accomplishing the purposes of the employment nor of the same
general nature as authorized conduct.25 None can seriously question
23
Adams v. Cinemark U.S.A., Inc., 831 So. 2d 1156, 1159
(Miss. 2002).
24
Id.
25
See id. (“It is obvious that Thomas's tortious act of
assaulting Adams was not authorized or in furtherance of
Cinemark's business.”). See also Hawkins v. Treasure Bay Hotel &
Casino, 813 So. 2d 757, 759 (Miss. Ct. App. 2001)(holding
intentional assault by co-worker to be outside the course and
scope of employment). By contrast, when the court has denied
coverage under the MWCA for intentional injuries, the assailant
co-workers are arguably acting within the course and scope of
their employment. See, e.g., Royal Oil Co. v. Wells, 500 So. 2d
439, 441-42 (Miss. 1986)(holding that employee’s claims against
her employer for malicious prosecution, arising out of a
supervisor’s charge that she had stolen money from a cash
register, was not barred by the MWCA and noting that the
supervisor who instigated false charges against her is not a
third person for purposes of the Act); Miller, 444 So. 2d at 371
(noting that injury arose out of questioning and detainment by
the head of defendant employer’s security department as a result
of the employer’s suspicion that the plaintiff-employee was
stealing funds).
12
that, for purposes of the MWCA, Williams’s shooting spree was the
act of a third person outside the course and scope of his
employment.
3. Injury “Because of” Employment
Injuries or death caused by the malicious and intentional acts
of a third party are compensable if they are inflicted “because of”
the employee’s employment. It is the district court’s statement
that nothing suggests that Willis was injured “because of” his
employment with which we disagree. Williams’s underlying
motivation was rooted in his deep-seated racial hatred, but it is
clear beyond cavil that his willful act directed at his co-workers
while all were on the job was based on —— “because of” —— their
employment.
“The words ‘because of,’ like the other broadly-construed
words of causation with the Act, such as ‘arising out of,’ express
the necessity of a nexus between the injury and employment.”26 This
nexus requires a showing of minimal causation: only “a rational
connection [between] employment and injury” is necessary.27 Whether
the connection between the injury and the employment is close
enough to demonstrate that a claimant was assaulted “because of”
his employment is a factual question.28 Still, if the facts
26
Big “2" Engine Rebuilders v. Freeman, 379 So. 2d 888,
890-91 (Miss. 1980).
27
Id. at 891.
28
Id.
13
surrounding the cause of an employment-related injury are
undisputed, we will treat the issue as a legal one.29
The Mississippi Supreme Court has determined that the required
nexus between an employee’s injury and his job is not established
when an intentional tort is the result of a personal vendetta and
could have been committed anywhere as easily as at the place of
employment.30 Otherwise, the court has reasoned, employees would
be compensated for injuries or death caused by the employee’s
personal indiscretions and having nothing to do with the employer.31
These hazards cannot reasonably be viewed as risks associated with
employment; neither can their compensation serve the legitimate
state interest in protecting employees from workplace injury.32
When even a tenuous relationship between an employee’s job and
an intentional injury inflicted by a third party exists, however,
the court has held that the MWCA applies. A traveling salesman,
assaulted by a motorist whom the salesman stopped to help while on
29
Green v. Glen Oaks Nursing Ctr., 722 So. 2d 147, 149
(Miss. Ct. App. 1998)(citing Wilson v. Int’l Paper Co., 108 So.
2d 554, 555 (Miss. 1959); Dependents of Roberts v. Holiday Parks,
Inc., 260 So. 2d 476, 479 (Miss. 1972)).
30
Big “2" Engine Rebuilders, 379 So. 2d at 891. See also
Ellis v. Rose Oil Co., 190 So. 2d 450 (Miss. 1966) (holding
claimant unentitled to compensation under the MWCA as he was shot
by his mistress’s husband while at work and such injury had
nothing to do with his employment); Brookhaven Steam Laundry v.
Watts, 59 So. 2d 294 (Miss. 1952)(same).
31
Big “2" Engine Rebuilders, 379 So. 2d at 891.
32
Id.
14
his sales route, was held to have been injured because of his
employment.33 In concluding that the employee was injured because
of his employment, the court cited the facts that (1) no personal
vendetta motivated the employee’s injury; (2) the employee violated
no instructions concerning the manner in which he carried out his
work; (3) the roadside stop did not cause the employee to deviate
spacially or temporally from his delivery route; and (4) the
salesman’s conduct, helping stranded motorists, was an acknowledged
incident of being on the road.34
We have interpreted Mississippi jurisprudence on whether an
employee is injured “because of” his employment in a similarly
broad manner. We determined, shortly after the Mississippi Supreme
Court’s above-discussed decision in Big “2" Rebuilders, that
coverage under the MWCA may be established by considering the
following factors: “(1) the injury occurred within the time frame
of employment; (2) the employee was within the spatial area
required by employment at the time of injury; and (3) there existed
a causal connection between the activity causing injury and the
interests of the employer.”35 In holding that a convenience store
clerk’s rape by a third party was compensable under the Act, we
emphasized that the third factor requires a showing only that “the
33
Id.
34
Id.
35
Williams v. Munford, Inc., 683 F.2d 938, 939 (5th Cir.
1982).
15
obligations or conditions of employment create a ‘zone of special
danger’ out of which the injury arose,” not a causal relation
between the nature of the injury and the employment.36
With respect to the connection between Willis’s injury and his
employment, the district court stated that there was “nothing to
suggest that at the time of the shootings...[the assailant]’s
actions...were directed against his victims ‘because of their
employment,’” even though the court acknowledged that the shootings
did not arise out of a specific personal disagreement between
Williams and Willis.37 We disagree. Tanks’s allegations leave no
doubt that Willis’s injury, like those of other co-workers,
resulted in principal part because of his longstanding employment
alongside Williams. The district court’s conclusion to the contary
notwithstanding, we discern a plethora of indicators that confirm
that the actions of the assailant, Williams, “were directed against
his victims ‘because of their employment.’”38
Specifically, Willis was on the job, at the exact time and
place that his employment required him to be there; he was not
violating any instructions in performing his job.39 All relevant
36
Id. (quoting Brookhaven Steam Laundry v. Watts, 55 So. 2d
381, 392 (Miss. 1951), rev'd in part and aff'd in part on
rehearing, 59 So. 2d 294 (Miss. 1952)).
37
Tanks, 332 F. Supp. 2d at 964 & n.14.
38
Id.
39
Williams, 683 F.2d at 939; Big “2" Engine Rebuilders,
379 So. 2d at 891.
16
allegations in Tanks’s complaints demonstrate that the assailant’s
actions resulted from his ever-increasing and uncontrollable
resentment that he was forced by Lockheed to work with, around, and
under African American co-workers. Thus, Tanks’s allegations are
more than sufficient to establish the required minimal causal nexus
between Willis’s injuries and his employment. Indeed, she is
likely judicially estopped from claiming otherwise on appeal.
In contrast, Tanks’s complaints are devoid of any allegations
that Williams ever acted out of racial animus anywhere other than
at work. Indeed, Tanks’s claim is replete with repeated assertions
that these two co-workers, Williams and Willis, were longtime
Lockheed employees who worked on the plant floor “in close
proximity” to each other; that Williams harbored racial hatred
toward his African American “co-workers” qua co-workers; that he
was known to be violent “toward his co-workers”; that Williams came
to work and parked in the employee parking lot with the loaded
firearms in his vehicle; that he informed Lockheed of his hatred
toward his black co-workers, that he was unhappy regarding his
employment by Lockheed because of being forced to work with blacks,
and that, if the situation were not alleviated, violent
consequences could occur; that he made threatening remarks to black
“co-workers”; that he emulated KKK members to intimidate “African
American co-workers”; that Williams instigated racial taunts
towards African American “co-workers”; same with “threats towards
his co-workers”; and, finally and most importantly, that during his
17
work shift on the day of the tragedy, he entered the workplace
armed and began firing at supervisors and co-workers, most —— but
not all —— of whom were African Americans. We cannot say that
Williams’s acts were directed toward the blacks among his black and
white victims solely because they were black and not because of
their employment: Based on the pleadings and the record, Williams
assaulted blacks (and whites) only at work.
All these examples permit no conclusion other than that the
intentional acts of this third-party employee were indisputably
directed against another employee (actually, several employees,
black and white) because of his employment. Under these
overwhelming facts, the only viable conclusion is that, regardless
of the ethnicity of the victims, Williams’s acts of shooting cannot
be separated from the employment status of his victims. Again,
Tanks’s pleadings are devoid of allegations that Williams ever
acted out against blacks elsewhere in the community —— not in
stores or bars or restaurants or schools or playing fields or
anywhere except the workplace. His rampage was undeniably
triggered by his uncontrollable anger at being forced to work, day
after day, year after year, with co-workers who were African
Americans. We would turn a blind eye to reality if we were to
conclude that Williams’s willful acts were directed at most of
these targets solely because they were black and not at all because
they were longtime co-workers who were black (and white). They
were shot because they were African American co-workers or white
18
co-workers (supervisors who were enforcing Lockheed’s equal
opportunity employment practices).40
We are conscious of the apparent conflict between the Pittman
and Miller approaches to determining whether injuries are
compensable under the MWCA. The outcome of this case, however, is
the same whether we follow the Pittman line of cases, holding
assault by one co-worker against another to be compensable as an
accident, or the Miller line of cases, holding such assaults to be
compensable when a co-worker acts outside the course and scope of
his employment and because of the victim’s employment. We
therefore see no need to certify this question to the Mississippi
Supreme Court.
III. CONCLUSION
The perpetrator, Williams, was an employee who was on the job
when he committed willful acts, as a third person, that were not
taken in the course and scope of his employment and were directed
against Willis, the victim and a co-worker of Williams, because of
40
Tanks also argues that we should affirm the district
court’s ruling because she may be able to demonstrate that
Lockheed intended for Willis’s injury to happen, and that this
intent of the employer is sufficient to remove the case from the
exclusivity bar of the MWCA. The Mississippi Supreme Court has
never held that an employer, even with actual notice of a third
party’s intent to harm an employee, is strictly liable for the
acts of that third party on the employer’s premises outside the
confines of the MWCA. See Newell v. S. Jitney Jungle Co., 830
So. 2d 621, 624 (Miss. 2002)(holding employer not liable to
employee shot at work by her husband, despite actual notice to
the employer of the estranged husband’s threats to harm the
employee, as the court refused to impose strict liability on
businesses for injuries inflicted by third parties on employees).
19
Willis’s employment. Thus, every element of coverage of a willful
act under the MWCA is met. And, pursuant to Mississippi case law,
when there is coverage under the MWCA, workers’ compensation is the
employee’s exclusive remedy against his employer vis-à-vis state
tort causes of action.41 We therefore reverse the district court’s
denial of Lockheed’s motion for partial summary judgment, render
judgment granting that motion and thus dismissing Tanks’s state law
claims, and remand the case for further proceedings consistent with
this opinion.
REVERSED AND RENDERED IN PART, and REMANDED IN PART.
DeMOSS, Circuit Judge, specially concurring:
This case presents a classic federalism issue. In my view
there is no area of law more “truly local” in nature and effect
than state workers’ compensation law. See Lopez v. United States,
514 U.S. 549, 568 (1995). I am disappointed, therefore, that I was
unable to persuade my colleagues on this panel to certify to the
Supreme Court of Mississippi the same narrow question presented to
us on interlocutory appeal.
The district judge read the controlling Mississippi statute
and relevant Mississippi cases and concluded, contrary to our
instant holding, that the alleged injury is not compensable under
the MWCA, given the competing Miller and Pittman lines of
Mississippi cases. This disagreement on a foundation of fluid
Mississippi law, especially in a case where multiple injured
41
The federal discrimination claims first advanced in the
Third Amended Complaint are not before us in this interlocutory
appeal.
parties have filed multiple claims in both state and federal
courts, weighs heavily in favor of certification to the Supreme
Court of Mississippi. While we may not compel the Supreme Court of
Mississippi to accept a certification of the question, the
possibility that the Mississippi Court would refuse should not
counsel against our submission. Had we certified the question and
the Supreme Court of Mississippi declined to accept, we would have
no alternative but to offer our “Erie guess”; but if the Supreme
Court of Mississippi had accepted and answered the question
certified, the parties in this case and the parties in the several
other law suits involving other victims of this same tragic and
unusual case of workplace violence would have the definitive answer
from the highest court in the state that enacted the controlling
statute.
I do concur in the well-reasoned and -written opinion authored
by Judge Wiener as our best guess of what the Supreme Court of
Mississippi would conclude if the question were actually before it.
I simply think we should have provided the opportunity to get the
answer directly from the truly final authority.
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