     Case: 12-60435   Document: 00512176601    Page: 1   Date Filed: 03/15/2013




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                 Fifth Circuit

                                                                FILED
                                                               March 15, 2013

                                No. 12-60435                   Lyle W. Cayce
                                                                    Clerk

TIMMY VUNCANNON
                                         Plaintiff

TIPPAH COUNTY

                                         Third Party Plaintiff-Appellant
v.

UNITED STATES OF AMERICA
                                         Defendant

MISSISSIPPI PUBLIC ENTITIES
WORKERS’ COMPENSATION TRUST
                                         Third-Party Defendant-Appellee



                Appeal from the United States District Court
                  for the Northern District of Mississippi


Before STEWART, Chief Judge, and SMITH and WIENER, Circuit Judges.
PER CURIAM:
      This case asks whether plaintiff Timmy Vuncannon, a county jail inmate,
was covered under the Mississippi Workers’ Compensation Act (“MWCA”) and
thus is entitled to compensation benefits for injuries sustained while he was
laboring on a work detail program maintained by Appellant Tippah County (“the
County”). The incarcerating county and the medical corporation that treated
Vuncannon seek reimbursement of medical expenses from Appellee, Mississippi
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Public Entities Workers’ Compensation Trust (“MPE”), the provider of workers’
compensation insurance for the County. Concluding as a matter of law that the
County had no enforceable contract of hire with Vuncannon, which is a
prerequisite to coverage under the MWCA, we AFFIRM the district court’s
summary judgment in favor of MPE.


                I. FACTS AND PROCEDURAL HISTORY
       While he was serving time in the County’s jail, Vuncannon labored in a
county work program under the sheriff’s supervision, for which services he
earned $10 per day to be credited “toward any and all charges of F.T.A/cash
bonds owed to the county.” Vuncannon was seriously injured in a forklift
accident while helping law enforcement officials conduct a “drug bust” pursuant
to that program.
       In his federal court action, Vuncannon asserted both state and federal
claims against numerous defendants, all of which have been dismissed. Shelby
County Health Care Corporation (“the MED”), owner of the medical facility
where Vuncannon was treated for his injuries, filed a complaint in intervention,
contending that Mississippi law required the County to pay Vuncannon’s
hospital bills of more than $640,000. The MED ultimately settled its claims
against the County, and, with the County, filed a third party complaint against
MPE.    The County contended that because Vuncannon was injured while
working as a trustee for its jail, he was covered by the MWCA, making MPE
liable for reimbursing his medical expenses. MPE countered that it is under no
obligation to provide reimbursement because county inmates injured on work
detail are not among those covered by the MWCA.


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      Both sides moved for summary judgment. Noting an absence of binding
authority, the district court concluded that the Mississippi Supreme Court would
likely interpret the MWCA strictly and deny coverage in this case. Although
conceding that the issue posed a difficult question of state law, the court
dismissed the claim against MPE by granting its motion for summary judgment.
      The County now appeals that judgment, insisting that statutory provisions
excluding state inmates from MWCA coverage do not apply to county inmates
like Vuncannon. MPE responds that the dispositive issue is not whether the
exclusion of state inmates extends to county inmates, but whether, when
Vuncannon was injured, he qualified as an “employee” under a “contract of hire,”
as required for him to come within the purview of the MWCA in the first place.


                                      II. ANALYSIS
A.    Standard
      We review a grant of summary judgment de novo, applying the same legal
standards as do the district courts.1 Summary judgment is appropriate when
“there is no genuine dispute as to any material fact and the movant is entitled
to judgment as a matter of law.”2 When reviewing a summary judgment, we
construe all the evidence and reasonable inferences in the light most favorable
to the nonmoving party.3 We are “not limited to the district court’s reasons for




      1
          United States v. Caremark, Inc., 634 F.3d 808, 814 (5th Cir. 2011).
      2
          FED. R. CIV. P. 56(a).
      3
          Amazing Spaces, Inc. v. Metro Mini Storage, 608 F.3d 225, 234 (5th Cir. 2010).

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its grant of summary judgment”4 and “may affirm the district court's judgment
on any grounds supported by the record.”5


B.       The Mississippi Workers’ Compensation Act
         Under Mississippi law, compensation “shall be payable for disability or
death of an employee from injury or occupational disease arising out of and in the
course of employment, without regard to fault as to the cause of the injury or
occupational disease.”6 The law defines an eligible “employee” as “any person .
. . in the service of an employer under any contract of hire or apprenticeship,
written or oral, express or implied . . . .”7 Mississippi’s statutes also specify
exclusions that, by their terms, place some classes of inmates outside the
MWCA’s scope. For example, Mississippi Code § 47-5-417 provides that no
inmate, while outside the jail on a state-approved work program, “shall be
deemed to be an agent, employee or involuntary servant of the Department of
Corrections, the state or any political subdivision thereof[.]” Vuncannon was not
a participant in any state-approved work program, however, and the County had
not implemented any such program at the time Vuncannon was injured.
Likewise, Mississippi Code § 47-5-567—which excludes “inmate[s]” from MWCA




         4
             Aryain v. Wal-Mart Stores Tex. LP, 534 F.3d 473, 478 (5th Cir. 2008).
         5
             Palmer ex rel. Palmer v. Waxahachie Indep. Sch. Dist., 579 F.3d 502, 506 (5th Cir.
2009).
         6
             MISS. CODE ANN. § 71-3-7 (emphasis added).
         7
             MISS. CODE ANN. § 71-3-3 (emphasis added).

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coverage—applies only to state inmates and thus has no bearing on the status
of Vuncannon, who was a county inmate.8
       The County contends that the absence of an explicit workers’
compensation exclusion that applies to Vuncannon is dispositive. But whether
an applicable exclusion bars Vuncannon’s MWCA eligibility is only of import if
Vuncannon is shown to qualify as an “employee” working under a “contract of
hire” under the express terms of the MWCA.9 Mississippi courts have not
addressed whether and in what circumstances a county prisoner injured on a
work detail is an employee working pursuant to a contract of hire, but the
Mississippi Supreme Court has identified the common law features of an
employment contract that bear on the question. Required are (1) the consent of




       8
        The Mississippi legislature adopted the MWCA in the late 1950s, but exempted cities
and counties from the class of employers required to provide coverage to their employees.
Thus, there was no need to exclude municipal and county inmates under the Act. In 1990,
however, the legislature amended Mississippi Code § 71-3-5 to bring counties and
municipalities under the provisions of the MWCA, but no coverage exclusion for city and
county inmates attended the change. Whether any policy rationale justified excluding state
prisoners but not city and county inmates from MWCA coverage is unclear.
       9
         The County contends that Vuncannon’s eligibility does not actually hinge on his
“employee” designation, but rather, on his status as a “workman” or “operative.” It cites the
portion of the MWCA that defines those employers subject to the law and its requirement that
five or more “workmen or operatives” regularly be in service. See MISS. CODE ANN. § 71-3-5.
Whether the County or any other entity was a qualifying employer is not at issue, however;
the County has attempted to borrow the operative terminology from the portion of the law
concerning covered employers and apply it to the portion concerning which workers are subject
to the law’s benefits and burdens. This statutory borrowing contravenes the clear language
of the MWCA that renders compensable under the Act only the injuries of “employees.” See
MISS. CODE ANN. § 71-3-7.

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the parties, (2) consideration for the service rendered, and (3) control over the
employee.10
      Based on the undisputed material facts of the instant summary judgment
record, we conclude that Vuncannon was not an employee working under a
contract of hire within the intendment of the MWCA. At the outset, we note an
absence of any express, written contract between Vuncannon and the County.
It is true that a worker may be an “employee” covered by the MWCA if his
“contract of hire” is either written or oral, express or implied, so this absence is
not dispositive.11 The County’s assertion that an express, written agreement
existed, however, finds no support in the record. The County points only to a
notice from the sheriff transmitted not to Vuncannon, but to the Tippah County
Justice Court, stating that Vuncannon had been placed on a work detail program
and credited $10 per day for his labor. Vuncannon never signed this document,
however, and it was dated January 26, 2006—the day of his injury and nine days
after he began working for the County. Neither is it evident from the record that
Vuncannon was even aware of that notice, much less that he was given a copy
of it or of any other writing explaining the terms and conditions under which he
would work.
      Any contention that Vuncannon labored under an implied contract of hire
likewise proves unavailing. First, notwithstanding the dearth of Mississippi
case law on point, the Mississippi Attorney General (“AG”) has addressed a
similar matter. Responding to the question whether a city must carry workers’


      10
         Walls v. N. Miss. Med. Cntr., 568 So.2d 712, 715 (Miss. 1990). Traditionally,
however, these elements are not rigidly applied in workers’ compensation cases. Id.
      11
           See MISS. CODE ANN. § 71-3-3.

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compensation insurance for a convict participating in community service
pursuant to the terms of a municipal court order, the AG cited Mississippi Code
§ 71-3-3 in a 1991 opinion letter which concluded that “a person performing work
as part of his sentence for a criminal conviction is not an ‘employee’ according to
[the MWCA’s] definition as there is no ‘contract of hire.’”12
      The AG’s opinion addressed mandatory work required by court order,
whereas Vuncannon was alleged to have volunteered for the subject work detail
assignment. As noted in a leading workers’ compensation treatise, however,
state courts typically find mutual assent wanting, not only when “the prisoner
has no choice in the matter of working or not working,” but also when “the
appearance of free choice is belied by the presence of a residual right of
compulsion.”13       Although the parties dispute whether Vuncannon in fact
volunteered to work, his consent is at best illusory when examined against the
backdrop of Mississippi’s long-held practice of requiring convicts to work. Under
Mississippi law,
      [i]t is the imperative duty of the board of supervisors in each county
      in this state to require each convict sentenced to imprisonment in
      the county jail and the payment of a fine and costs, or to
      imprisonment and payment of costs, or to payment of fine and costs,
      to work out the sentence on the county convict farm or on the public
      roads or other public works of the county, or in a contiguous
      county[.]14




      12
           Miss. Office of Att’y Gen., Op. Ltr., 1991 WL 578135 (Miss. A.G. November 20, 1991).
      13
         See 3-64 ARTHUR LARSON & LEX K. LARSON, LARSON'S WORKERS' COMPENSATION LAW
§ 64.03 (2012) (hereafter, “LARSON’S”) (collecting cases).
      14
           See MISS. CODE ANN. § 47-1-3.

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That Vuncannon, like any Mississippi inmate, was entitled to credit for his
labors15 does not change the fact that the County simply could have required him
to work.
       Further, although coverage under the MWCA usually “is not affected by
the fact that an employee’s wages are minimal,”16 courts nationwide have looked
to whether the inmate labored alongside, and under circumstances substantially
similar to, traditional workers in determining workers’ compensation
eligibility.17 There might be “little justification in freeing [a private] employer
from the burdens of the prisoner’s work-related injury”18 when, for example, the
prisoner works outside the prison pursuant to a work-release program. But,
Vuncannon suffered injury while working under the supervision of the country
sheriff for the benefit of the Mississippi Bureau of Narcotics, a public entity. He
received only a $10 per day credit “toward any and all charges of F.T.A/cash
bonds owed to the county”—a meager sum well below the prevailing wages

       15
            See MISS. CODE ANN. § 47-1-15, 47.
       16
          See Mathis v. Jackson Cnty. Bd. of Supervisors, 916 So.2d 564, 570 (Miss. Ct. App.
2005) (citing Sullivan v. Okolona, 370 So.2d 921 (Miss. 1979)).
       17
         See S. Tucson v. Indus. Comm’n, 156 Ariz. 543, 549 (Ariz. Ct. App. 1988) (recognizing
trend to require compensation for prisoners whose work was indistinguishable from that
performed by other employees).
       18
         LARSON’S, supra note 7, § 64.03; see also, e.g., Benavidez v. Sierra Blanca Motors, 122
N.M. 209, 215 (N.M. 1996); Hamilton v. Daniel Int’l Corp., 257 S.E.2d 157, 158 (S.C. 1979)
(finding that inmate injured while on work-release acquired the rights and liabilities of a
private employee because he voluntarily entered into an employment contract and enjoyed the
same salary and working conditions as other employees such that he “transcended his prisoner
status and became a private employee entitled to work[ers’] compensation benefits”); Courtesy
Constr. Corp. v. Derscha, 431 So. 2d 232, 232-33 (Fla. Dist. Ct. App. 1983) (finding workers’
compensation applicable to work-release prisoners engaged to work in private enterprises,
since those businesses, in paying for the inmate labor, become “‘employers’ in every practical
sense of the word”).

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earned by traditional public-sector workers, and not in cash at that. Perhaps
most importantly, as Mississippi law saddles the incarcerating county with the
burden of paying an indigent inmate’s hospital bills,19 it is the County, and not
Vuncannon himself, that is likely to be stuck with the hospital costs. Of course,
absent workers’ compensation, a typical county worker in Mississippi would
have no such recourse against his employer for injuries sustained on the
job—casting doubt on the necessity and practical import of providing such
coverage for inmates.
       We note in closing that if the County had bargained successfully with MPE
for coverage of its working inmates, it would be entitled to the benefit of that
bargain, regardless whether the MWCA in fact required the County to maintain
that coverage. The record, however, includes neither evidence nor allegation
that any such bargaining occurred. It follows that the County has not been
deprived of any payment to which it is entitled.


                                  III. CONCLUSION
       Because, at the time of his injury, Vuncannon was not working for the
County under a contract of hire, he did not fall within the ambit of the MWCA.
Thus, the County’s workers’ compensation insurance did not cover Vuncannon’s




       19
          See MISS. CODE ANN. § 47-1-59 (“[I]f the prisoner is ineligible for state aid or the
amount available for hospitalization as a state aid patient is inadequate to pay all such
hospital expense of a prisoner who is financially unable to pay his own expenses, the board of
supervisors of the county where the prisoner was originally confined or arrested shall, upon
presentation of the certificate of the physician certifying that said prisoner was in need of
hospitalization, pay from the general funds of the county the reasonable and customary
charges for such services or as much thereof as is not paid by state aid.”).

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medical expenses.    We therefore AFFIRM the district court’s judgment
dismissing the third party plaintiffs’ claims against MPE.




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