      IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

                      NO. 2013-CA-01807-COA

DAVID MCKEAN, FRANCESCO MEDINA,               APPELLANTS/CROSS-
DONALD ARRINGTON AND WAYNE                           APPELLEES
ROBERTSON

v.

YATES ENGINEERING CORPORATION,                 APPELLEES/CROSS-
ANDERSON REGIONAL MEDICAL CENTER,                   APPELLANTS
AND FOIL WYATT ARCHITECTS AND
PLANNERS, PLLC

DATE OF JUDGMENT:             10/21/2013
TRIAL JUDGE:                  HON. LESTER F. WILLIAMSON JR.
COURT FROM WHICH APPEALED:    LAUDERDALE COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANTS:     MARK D. MORRISON
                              KEN R. ADCOCK
                              WILLIAM CHRISTOPHER IVISON
                              EUGENE COURSEY TULLOS
ATTORNEYS FOR APPELLEES:      JAMES D. HOLLAND
                              ROMNEY HASTINGS ENTREKIN
                              ROBERT B. IRELAND III
                              THURMAN LAVELLE BOYKIN III
                              RICHARD O. BURSON
                              PEELER GRAYSON LACEY JR.
                              SHIRLEY M. MOORE
NATURE OF THE CASE:           CIVIL – PERSONAL INJURY
TRIAL COURT DISPOSITION:      GRANTED APPELLEES’ MOTIONS FOR
                              SUMMARY JUDGMENT
DISPOSITION:                  AFFIRMED – 09/01/2015
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

     EN BANC.

     BARNES, J., FOR THE COURT:

                FACTS AND PROCEDURAL HISTORY
¶1.    This case stems from an accident that occurred during the construction of Anderson

Regional Medical Center’s “Medical Towers III” expansion in Meridian, Mississippi.

ARMC entered an agreement with Foil Wyatt Architects and Planners PLLC for the project’s

design. Architect E. Bowden “Skip” Wyatt prepared the design drawings for Foil Wyatt.

¶2.    The Medical Towers III construction began in 2008. Although there was no written

agreement, Yates Construction was hired as the general contractor. Yates Construction then

hired Spectrum II as the subcontractor for concrete services. Plaintiffs, David McKean,

Francesco Medina, Donald Arrington, and Wayne Robertson, all worked for Spectrum II.

¶3.    As of September 2008, the first-story reinforced concrete slab had been poured, and

Yates Construction was preparing to pour the concrete walls and columns that would help

support the elevated second-story reinforced concrete slab. Yates Engineering1 became

involved in the construction project when Dan Perry, Yates Construction’s general

superintendent, asked engineer Ted Pope to prepare design drawings of the scaffolding and

second-story formwork.2

¶4.    During late September 2008, Pope visited the construction site and met with Mike

Clark, a construction supervisor for Yates Construction. Pope noticed some formwork for

the first-story concrete columns and walls, but he did not see any scaffolding for the second-

story formwork.

¶5.    During Pope’s visit, he and Clark discussed some of the necessary features of the


       1
           Yates Engineering was described as a “sister company” of Yates Construction.
       2
        The formwork essentially serves as a mold for the reinforced concrete while it dries.
The scaffolding acts as a temporary support for the formwork and the wet concrete.

                                              2
scaffolding, such as the need for wooden 4"x4" posts and stringers, and 2"x4" joists. Pope

prepared his preliminary design drawings, and submitted them for comments to Yates

Construction on October 3, 2008. Meanwhile, Yates Construction had begun building the

scaffolding before receiving Pope’s design drawings.

¶6.    It is undisputed that Pope’s plan was fundamentally flawed in one significant way –

it contemplated using twenty-four-foot posts. However, wooden 4"x4" posts are not

available in that length. Consequently, the posts would have to be “tiered” by stacking them

end to end and “spliced” for stability. Despite the fact that Pope’s plan was effectively

impossible to follow, Yates Construction had no comments about Pope’s design. Yates

Construction asked Pope to send a final version of his design drawings. Pope complied on

October 6, 2014. However, Yates Construction ignored essential features of Pope’s

scaffolding design.

¶7.    On November 17, 2008, Spectrum II was pumping wet concrete into the second-story

formwork when the scaffolding collapsed. It is undisputed that the collapse was caused by

the scaffolding rather than the formwork. The plaintiffs were injured when they fell to the

ground.

¶8.    On September 1, 2010, the plaintiffs sued Yates Construction. The plaintiffs claimed

that Yates Construction negligently failed to build the scaffolding “in conformity with the

plans and specifications set forth in the governing construction contract or otherwise in a safe

and workmanlike manner.”

¶9.    Yates Construction responded by filing a motion to dismiss the complaint and an



                                               3
answer. In the motion to dismiss, Yates Construction argued that because it had “effectively

secured workers’ compensation insurance coverage for the Plaintiffs, [it was] protected by

the exclusive remedy provision(s) of the Mississippi Workers Compensation Act.”

Alternatively, it argued that “as the general contractor, [it was] protected by the exclusive

remedy provision(s) on account of the fact that the Plaintiffs, employees of a subcontractor,

were provided workers’ compensation benefits for their alleged injuries.” Therefore, Yates

Construction concluded that it was “statutorily immune from the suit brought by the

Plaintiffs.”

¶10.   In February 2011, the plaintiffs amended their complaint and added Yates Engineering

and Foil Wyatt as defendants. According to the amended complaint, Yates Engineering and

Foil Wyatt negligently failed “to design and formulate plans and specifications for the

scaffolding . . . .” The plaintiffs also claimed that Yates Engineering and Foil Wyatt “were

negligent in inspecting the scaffold[ing] and failed and/or refused to correct known

deficiencies and defects in the construction [that] made it dangerous to use prior to the

subject incident.”

¶11.   In March 2012, the United States District Court for the Southern District of

Mississippi ruled on a declaratory-judgment action that had been filed by American

Resources Insurance Company Inc. The district court held that Yates Construction was the

statutory employer of Spectrum II, and it was therefore immune from suit under tort theories.

The circuit court subsequently dismissed the plaintiffs’ suit against Yates Construction.

¶12.   In June 2012, the plaintiffs again amended their complaint by adding ARMC as a



                                             4
defendant. The plaintiffs claimed that ARMC negligently failed to require a written contract

with Yates Construction. Additionally, the plaintiffs claimed that ARMC negligently failed

to supervise and inspect Yates Construction’s work. Finally, the plaintiffs claimed that

ARMC failed to maintain the premises in a reasonably safe condition and warn them of

dangers.

¶13.   On August 3, 2012, the plaintiffs designated engineer Ralph Sinno, Ph.D., as an

expert. Dr. Sinno opined that defects in the scaffolding caused the collapse. Dr. Sinno did

not attribute the collapse to any aspect of the formwork. Instead, Dr. Sinno stated that the

formwork conformed to Foil Wyatt’s specifications.

¶14.   Foil Wyatt’s motion for summary judgment had been pending since March 2012. At

the plaintiffs request, Dr. Sinno submitted an affidavit opining that Foil Wyatt had a duty to

inspect and supervise the construction of the scaffolding. However, Foil Wyatt successfully

moved to exclude Dr. Sinno’s affidavit on the basis that, as an engineer, he was not qualified

to opine as to the duties of an architect. The plaintiffs have not appealed the circuit court’s

decision to exclude Dr. Sinno’s affidavit. On November 27, 2012, the circuit court found

that Foil Wyatt did not have a duty to inspect the scaffolding. Consequently, the circuit court

granted Foil Wyatt’s motion for summary judgment.

¶15.   On January 14, 2013, Yates Engineering filed a motion for summary judgment

regarding plaintiff medina. ARMC joined Yates Engineering’s motion. The circuit court

granted the motion and held that as an alleged illegal immigrant, Francesco Medina was not




                                              5
entitled to recover even if Yates Engineering and ARMC were found to be negligent.3

¶16.   In August 2013, the circuit court granted summary judgment in favor of Yates

Engineering. The circuit court’s decision was based on its conclusion that “[a]t no point in

time did Yates Engineering assume the duty [to] inspect or supervise the construction and

implementation of its design drawings either by contract or conduct.” The circuit court later

granted ARMC’s motion for summary judgment. According to the circuit court, “no genuine

issue of material fact remains with respect to Plaintiffs’ claims against [ARMC], and

therefore, [ARMC] is entitled to summary judgment on Plaintiffs’ claims against it.” The

circuit court also entered a final judgment on that date.

¶17.       The plaintiffs appeal. They argue that the circuit court erred when it granted

summary judgment in favor of Yates Engineering, Foil Wyatt, and ARMC.                  Yates

Construction and ARMC have filed cross-appeals that need only be addressed if this Court

reverses the circuit court’s grant of summary judgment in their favor.

                                  STANDARD OF REVIEW

¶18.   An appellate court reviews a trial court’s decision to grant a motion for summary

judgment de novo. Karpinsky v. Am. Nat’l Ins. Co., 109 So. 3d 84, 88 (¶9) (Miss. 2013).

       3
           Specifically, the circuit court held:

       Medina, invoking the Fifth Amendment, has repeatedly declined to verify his
       citizenship or his immigrant/work status during his deposition testimony.
       Therefore, the Court can only surmise that Medina is an illegal immigrant.
       The very injuries for which the plaintiff seeks recovery arose during the
       course of his illegal employment. But for his illegal employment, Medina
       would not have been injured during the construction accident. In this Court’s
       opinion, to allow Medina to recover for injuries sustained during the course
       of his own illegal conduct would be contrary to public policy.

                                                   6
“[I]f the pleadings, depositions, answers to interrogatories and admissions on file, together

with the affidavits, if any, show that there is no genuine issue as to any material fact and that

the moving party is entitled to a judgment as a matter of law,” then summary judgment “shall

be rendered.” M.R.C.P. 56(c). The evidence must be viewed “in the light most favorable

to the party against whom the motion has been made.” Karpinsky, 109 So. 3d at 88 (¶9).

                                          ANALYSIS

       I.       Yates Engineering

¶19.   According to the plaintiffs, there is a genuine issue of material fact regarding whether

Pope breached his duty to design a scaffolding system that would support the formwork and

the wet concrete. The plaintiffs also claim that there is a genuine issue of material fact

regarding whether Pope breached his duty to inspect the scaffolding that Yates Construction

built before Spectrum II poured the concrete. “To prevail in any type of negligence action,

a plaintiff must first prove the existence of a duty.” Enter. Leasing Co. S. Cent. Inc. v.

Bardin, 8 So. 3d 866, 868 (¶7) (Miss. 2009). “[W]hether a duty exists in a negligence case

is a question of law to be determined by the court.” Id. An appellate court reviews questions

of law de novo. Facilities Inc. v. Rogers-Usry Chevrolet Inc., 908 So. 2d 107, 110 (¶5)

(Miss. 2005).

       A.       Duty of Professionalism

¶20.   “Mississippi law imposes on design professionals, including architects and engineers,

the duty to exercise ordinary professional skill and diligence.” Hobson v. Waggoner Eng’g

Inc., 878 So. 2d 68, 77 (¶35) (Miss. Ct. App. 2003). Perry admitted that Yates Construction



                                               7
began building the scaffolding before it received Pope’s design drawings. It is unclear how

much of the scaffolding had been built when Yates Construction received Pope’s design

drawings. In any event, Pope’s scaffolding design was fundamentally flawed because it

contemplated using 4"x4" posts that were twenty-four feet tall. Yates Construction could not

possibly comply with Pope’s design, because 4"x4" posts are not available at that length.

Consequently, the posts would have to be “tiered” by stacking them end to end and “spliced”

for stability. Because Pope’s design did not contemplate using “tiered” posts, his plans did

not include the design features necessary to “splice” the posts.

¶21.   Pope submitted his design drawings to Yates Construction for review and an

opportunity to comment. Despite the fact that Pope’s design drawings were effectively

impossible to follow, Yates Construction made no comment about Pope’s design. Instead,

Yates Construction asked Pope to send final versions of his design drawings. Pope complied

on October 6, 2014. There is no evidence that the design reflected in the initial drawings was

any different than the design reflected in the final versions. Instead of seeking clarification

or revision from Pope, Yates Construction acted on its own and “spliced” the posts by

fastening a three-quarter-inch strip of plywood on opposite sides of the stacked posts above

and below the point where the two posts met. The plaintiffs’ expert engineer, Dr. Sinno,

reported that Yates Construction’s splicing method was “an invitation to catastrophic splicing

failure of the entire framing of the scaffolding.”

¶22.   Yates Construction also ignored Pope’s bracing specifications. Instead of using 2"x4"

diagonal and horizontal bracings as contemplated in Pope’s plan, Yates Construction used



                                              8
1"x4" bracings. According to Dr. Sinno, “[t]he lack of adequate diagonal and continuous

cross-bracings from top to bottom of the scaffolding resulted in the instability of the entire

framing causing the formwork to collapse.” Noting that “[t]he details of the as-built

scaffolding on the site are far from th[o]se in the design drawings,” Dr. Sinno opined that

“the cause of the failure did lie in the as-built scaffolding and not in the design on paper that

was not used.” (Emphasis added).

¶23.   Even if Pope’s design was inadequate in one aspect, the fact remains that there is no

evidence that Yates Construction actually used his design. Instead of seeking clarification

regarding the fact that Pope’s design called for twenty-four-foot posts that could not actually

be obtained, Yates Construction used its own design to “splice” the posts. And Yates

Construction ignored the fact that Pope’s design called for 2"x4" diagonal and lateral

bracings. Yates Construction simply decided to use 1"x4" bracings instead. The plaintiffs’

expert reported that the failure was caused by the “as-built scaffolding and not in the design

on paper that was not used.” Stated differently, there is no evidence that Pope’s design

caused the plaintiffs’ injuries. Without any evidence, there can be no genuine issue of

material fact regarding causation. It follows that summary judgment is appropriate regarding

the plaintiffs’ negligent-design claim against Pope and Yates Engineering.

       B.     Duty to Inspect

¶24.   According to the plaintiffs, Pope negligently failed to inspect the scaffolding before

Spectrum II poured the concrete. Dr. Sinno’s report states that Pope “failed to inspect the




                                               9
formwork before casting of the concrete.”4 However, during his deposition, Dr. Sinno was

asked whether Pope had a duty to preapprove the scaffolding and formwork before the

concrete was poured. Dr. Sinno responded, “No, he’s the designer of the scaffolding.”

¶25.   The plaintiffs cite no authority to support the conclusion that Pope had an absolute

duty to inspect the scaffolding and formwork to ensure that Yates Construction followed his

design. “Only in limited circumstances will [an engineer], independently of express contract

language, have a duty to supervise the construction site to ensure safe operations.” Family

Dollar Stores of Miss. Inc. v. Montgomery, 946 So. 2d 426, 430 (¶12) (Miss. Ct. App. 2006).

“Unless [an engineer] has undertaken by conduct or contract to supervise a construction

project, he is under no duty to notify or warn workers or employees of the contractor or

subcontractor of hazardous conditions on the construction site.” Id. (quoting Jones v. James

Reeves Contractors, 701 So. 2d 774, 786 (Miss. 1997)). It is undisputed that there was no

written agreement between Yates Engineering and Yates Construction that required Pope to

inspect the formwork or scaffolding.

¶26.   There are “seven factors to determine whether supervisory powers go beyond the

provisions of [a] contract.” Hobson, 878 So. 2d at 72 (¶15) (citations omitted). Those

factors are:

       (1) actual supervision and control of the work; (2) retention of the right to
       supervise and control; (3) constant participation in ongoing activities at the
       construction site; (4) supervision and coordination of subcontractors; (5)
       assumption of responsibilities for safety practices; (6) authority to issue change

       4
         Wyatt said that he and Perry inspected the formwork to ensure that wet concrete
would not leak out of it. Wyatt added that he did not know whether the scaffolding was
finished at that time, and he did not inspect it.

                                              10
       orders; and (7) the right to stop the work.

Id. On appeal, the plaintiffs argue that Pope inspected the “already existent beginnings of

the very structure that he was commissioned to design.” But a careful examination of Pope’s

deposition testimony reflects that the scaffolding and formwork that existed when he visited

the site related to the concrete columns and walls that would later help support the second

floor – not the actual second floor, itself. Stated differently, the formwork and scaffolding

that was in place during Pope’s visit was not the scaffolding and formwork that he was

commissioned to design. Pope did not know that after his visit to the site, Yates Construction

began building the scaffolding and formwork before it received his design drawings.

¶27.   Pope unequivocally said that he did not visit the construction site to determine

whether Yates Construction followed his design. According to Pope, after his initial visit to

the site, he next visited it after the formwork collapsed. On an OSHA form, Perry indicated

that “the erected form work [had been] inspected by a qualified engineer” approximately one

week before Spectrum II poured the concrete. Perry also indicated that he had accompanied

the unspecified engineer during the inspection. During his deposition, Perry said he “thought

. . . Ted Pope” had inspected the scaffolding and formwork because he “saw him out there

one day.”     When asked whether Pope had been “walking around looking at the

[scaffolding,]” Perry responded that he “saw him at the office[, w]hich is a block away.”

However, when pressed further on the subject, Perry admitted: “[W]e didn’t have . . . an

engineer look at it.” Said differently, Perry conceded that his original answer on the OSHA

form was not accurate.



                                             11
¶28.   There is no evidence that Pope was involved in the “actual supervision and control of

the work.” He did not retain any “right to supervise and control” it, and he did not supervise

or coordinate any of the subcontractors. Nor did he assume any responsibility for safety

practices at the construction site. There was no evidence that he had any authority to issue

orders or stop work at the site. As for whether there was evidence of Pope’s “constant

participation in ongoing activities at the construction site,” in the light most favorable to the

plaintiffs, Perry conceded that on an OSHA form, he incorrectly stated that he had once seen

Pope approximately one block away from the site.               Perry also conceded that Yates

Construction did not have an engineer inspect the scaffolding before Spectrum II poured the

concrete. The evidence does not support the conclusion that Pope had a duty to inspect the

scaffolding. There is no merit to the plaintiffs’ claim that summary judgment in favor of

Yates Engineering was inappropriate.

       II.     ARMC

¶29.   The plaintiffs claim that the circuit court erred when it granted ARMC’s motion for

summary judgment. According to the plaintiffs, there is a genuine issue of material fact

regarding whether ARMC breached its duty as the owner of the property to provide them

with a reasonably safe working environment. The plaintiffs also claim that ARMC is

vicariously liable for Yates Construction’s behavior based on an agency relationship between

ARMC and Yates Construction.

¶30.   Mississippi Code Annotated section 11-1-66 (Rev. 2004) provides that “[n]o owner

. . . of property shall be liable for the . . . injury of an independent . . . contractor’s employees



                                                 12
resulting from dangers of which the contractor knew or reasonably should have known.”

Additionally, “Mississippi common law protects business owners from injuries sustained by

independent contractors on the work site.” McSwain v. Sys. Energy Res. Inc., 97 So. 3d 102,

108 (¶18) (Miss. Ct. App. 2012). In the context of a construction project, a property owner

has a duty to surrender a reasonably safe working environment to a contractor. Saranthus

v. Health Mgmt. Assocs. Inc., 56 So. 3d 1274, 1276 (¶10) (Miss. Ct. App. 2011). That duty

contemplates warning a contractor about any hidden dangers on the property that existed

before the work began. Bevis v. Linkous Constr. Co., 856 So. 2d 535, 539 (¶9) (Miss. Ct.

App. 2003). The plaintiffs do not claim that ARMC negligently failed to warn them about

a hidden danger on the property.

¶31.   After the property owner surrenders the property to the contractor, the contractor

assumes a “duty to warn or otherwise protect” his employees and agents on the property. Id.

The contractor’s duty to warn others also applies to his subcontractors and their employees.

Id. However, the Mississippi Supreme Court has stated that the outcome may be different

“[i]f [a plaintiff] can show that . . . the owner maintained substantial de facto control over

those features of the work out of which the injury arose . . . .” Magee v. Trans. Gas Pipe

Line Corp., 551 So. 2d 182, 186 (Miss. 1989). “What is critical is whether the project owner

maintains any right of control over the performance of that aspect of the work that has given

rise to the injury.” Id. Stated differently, when a property owner contracts its responsibility

for the site to a general contractor, and there is no evidence that the property owner

maintained any control over an instrumentality that injured a subcontractor’s employee, the



                                              13
property owner is not liable for the employee’s injuries. Avent v. Miss. Power & Light Co.,

94 So. 3d 1199, 1205 (¶24) (Miss. Ct. App. 2011).

¶32.   There is no evidence that ARMC maintained any right to control the design or

construction of the scaffolding that collapsed. Instead, the plaintiffs claim that ARMC

maintained control of the property in general both directly and through its alleged agency

status through Yates Construction. The plaintiffs note that there was no written agreement

between ARMC and Yates Construction. However, it is undisputed that ARMC employees

were not even allowed on the construction site without first obtaining Yates Construction’s

permission. During his deposition, Denton Farr, ARMC’s vice president of operations, said

that he was not allowed on the construction site without first obtaining Yates Construction’s

permission. He further explained that when he was allowed on the construction site, he “was

always accompanied by somebody from Yates.” His visits to the construction site were “not

consistent and . . . not often.” Farr stated that no one employed by ARMC inspected the

construction site for safety purposes because ARMC did not “have anybody in that role” and

“nobody at [ARMC] ha[d] that expertise.” The plaintiffs further note that Denton Farr,

ARMC’s vice president of operations, attended regular project meetings. During his

deposition, Farr explained that ARMC simply wanted to be informed of the construction

progress. “The fact that [the property owner] had employees [who] conducted periodic

inspections on the work could change nothing” about the fact that the property owner had

surrendered control of the premises to a contractor. Magee, 551 So. 2d at 185-86.

¶33.   Finally, the plaintiffs’ derivative claim against ARMC also fails as a matter of law.



                                             14
Assuming for the sake of discussion that Yates Construction was ARMC’s agent, Yates

Construction was found to be the plaintiffs’ statutory employer for the purpose of workers’

compensation benefits. The plaintiffs do not challenge Yates Construction’s status as their

statutory employer. In other words, the plaintiffs have successfully obtained their exclusive

remedy against Yates Construction. “[B]ecause vicarious liability derives solely from the

principal’s legal relation to the wrongdoer, settlement with the tortfeasor removes the basis

for any additional recovery from the principal upon the same acts of negligence.” J & J

Timber Co. v. Broome, 932 So. 2d 1, 6 (¶20) (Miss. 2006) (quoting Biddle v. Sartori Mem’l

Hosp., 518 N.W.2d 795, 798 (Iowa 1994)). So even if we found merit to the plaintiffs’

agency claim, they would have no basis to recover additional damages against ARMC.

¶34.   As a matter of law, ARMC did not have a duty to warn the plaintiffs about the

condition of the scaffolding that Yates Construction designed and built. The scaffolding did

not exist at the time that ARMC surrendered control of the property to Yates Construction,

and ARMC had no control over any aspect of the scaffolding. And even if we found that

Yates Construction was ARMC’s agent, having resolved their claims against Yates

Construction, the plaintiffs would not be able to recover further from ARMC. This issue has

no merit.

       III.   Foil Wyatt

¶35.   Finally, the plaintiffs argue that the circuit court erred when it granted Foil Wyatt’s

motion for summary judgment. According to the plaintiffs, Foil Wyatt had a contractual duty

to inspect the formwork and scaffolding before Spectrum II poured the concrete for the



                                             15
second-story slab. The plaintiffs also claim that Foil Wyatt’s conduct created a duty “to

ensure the integrity of the concrete formwork.” The plaintiffs conclude that there was a

genuine issue of material fact regarding whether Foil Wyatt “breached its contractual and

professional duties in the premises.” “Questions concerning the construction of contracts are

questions of law that are committed to the court rather than questions of fact committed to

the fact[-]finder.” Facilities Inc., 908 So. 2d at 110 (¶5).

       A.     Contract Liability

¶36.   In 1992, ARMC and Foil Wyatt signed an “AIA-B141 Owner/Architect Agreement”

(the B141 Agreement), which states:

       [Foil Wyatt] shall not have control over or charge of and shall not be
       responsible for construction means, methods, techniques, sequences[,] or
       procedures, or safety precautions and programs in connection with the work,
       since these are solely the Contractor’s responsibility . . . . [Foil Wyatt] shall
       not have control over or charge of acts or omissions of the Contractor,
       Subcontractors, or their agents or employees, or of any other persons
       performing portions of the Work.

“The primary purpose of all contract construction principles and methods is to determine and

record the intent of the contracting parties.” Id. at (¶6). “In contract construction cases, [an

appellate court’s] focus is upon the objective fact – the language of the contract. We are

concerned with what the contracting parties have said to each other, not some secret thought

of one not communicated to the other.” Id. at 110-11 (¶6).

¶37.   The unambiguous language of the B141 Agreement states that Foil Wyatt is not

responsible for construction methods or safety precautions “in connection with the work.”

The temporary scaffolding at issue was intended to support the formwork while the wet



                                              16
concrete within it hardened. Stated differently, the scaffolding was a means to build the

project’s second-story floor. Therefore, Foil Wyatt is not contractually responsible for

ensuring that the scaffolding design was adequate to support the formwork, the steel concrete

reinforcement, and the wet concrete while it hardened. Nor was Foil Wyatt contractually

obligated regarding any necessary safety precautions related to the scaffolding.

¶38.   Furthermore, Foil Wyatt had no contractual duty to inspect the scaffolding before

Spectrum II poured the concrete. The B141 Agreement states that Foil Wyatt “shall visit the

site at intervals appropriate . . . to determine . . . that the Work when completed will be in

accordance with the Contract Documents.” The “Contract Documents” are defined as Foil

Wyatt’s “Drawings and Specifications setting forth in detail the requirement for the

construction of the Project.” The “Contract Documents” do not include any drawings or

specifications related to the scaffolding. They merely state that “adequate bracing and

forming is required” and “[c]oncrete construction tolerances shall conf[o]rm to ACI Standard

347 Chapter 203-1, ‘Tolerances for Reinforced Concrete Buildings.’” Because the Contract

Documents do not address the scaffolding, Foil Wyatt was not obligated to inspect the

scaffolding to ensure that it was in compliance.

       B.     Liability Through Conduct

¶39.   As stated above, Foil Wyatt had a common-law duty “to exercise ordinary

professional skill and diligence.” Hobson, 878 So. 2d at 77 (¶35). There are limited

circumstances in which an architect has an extra-contractual “duty to supervise the

construction site to ensure safe operations.” Montgomery, 946 So. 2d at 430 (¶12). “Unless



                                             17
[an architect] has undertaken by conduct or contract to supervise a construction project, he

is under no duty to notify or warn workers or employees of the contractor or subcontractor

of hazardous conditions on the construction site.” Id. (quoting Jones, 701 So. 2d at 786).

There are “seven factors to determine whether supervisory powers go beyond the provisions

of [a] contract.” Hobson, 878 So. 2d at 72 (¶15) (citations omitted). Those factors are:

       (1) actual supervision and control of the work; (2) retention of the right to
       supervise and control; (3) constant participation in ongoing activities at the
       construction site; (4) supervision and coordination of subcontractors; (5)
       assumption of responsibilities for safety practices; (6) authority to issue change
       orders; and (7) the right to stop the work.

Id.

¶40.   Wyatt visited the construction site on a weekly basis, but there was no evidence that

he actually supervised or controlled the construction of the scaffolding. During his weekly

visits, he usually walked around the site to see how much work had been completed so he

could certify payments to Yates Construction. Because the finished concrete was Foil

Wyatt’s responsibility, Wyatt inspected the rebar and the formwork before Spectrum II

poured the concrete. However, he did not review Pope’s scaffolding design drawings, and

he did not inspect the scaffolding that Yates Construction built. And although Foil Wyatt

had the general authority to reject work that did not conform to the Contract Documents, it

had no authority to stop the work. Only ARMC had the authority to stop work on the project.

¶41.   There is no evidence that Foil Wyatt undertook to supervise any aspect of the

scaffolding. Therefore, Foil Wyatt had no duty to warn the plaintiffs that the scaffolding that

Yates Construction built was inadequate. It follows that the plaintiffs’ claim against Foil



                                              18
Wyatt fails as a matter of law. We find no merit to this issue.

                                       CONCLUSION

¶42.   It is undisputed that the scaffolding collapsed because Yates Construction did not

build it properly. The plaintiffs’ expert unequivocally stated that the collapse was not related

to Pope’s design, because Yates Construction did not follow Pope’s specifications. Neither

Yates Engineering, Foil Wyatt, nor ARMC had a duty to inspect the scaffolding that Yates

Construction built. The circuit court did not err when it granted summary judgment in favor

of Yates Engineering, Foil Wyatt, or ARMC. Because these conclusions are dispositive,

Medina’s claim that the circuit court erred in dismissing his claim due to his immigration

status is moot; this opinion should not be construed as implicit agreement with the circuit

court’s ruling in this regard. The cross-appeals are also moot. We therefore affirm the

circuit court’s judgment.

¶43. THE JUDGMENT OF THE LAUDERDALE COUNTY CIRCUIT COURT IS
AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE
APPELLANTS.

    LEE, C.J., IRVING AND GRIFFIS, P.JJ., ISHEE, MAXWELL, FAIR AND
WILSON, JJ., CONCUR. CARLTON, J., CONCURS IN RESULT ONLY WITHOUT
SEPARATE WRITTEN OPINION. JAMES, J., DISSENTS WITH SEPARATE
WRITTEN OPINION.

       JAMES, J., DISSENTING:

¶44.   I respectfully dissent from the majority’s opinion and would reverse the circuit court’s

grant of summary judgment in favor of Yates Engineering, ARMC, and Foil Wyatt.

Although the majority did not reach the issue, I would also reverse the circuit court’s grant

of summary judgment against Medina. As for the issues raised on cross-appeal that the


                                              19
majority did not reach, I would affirm the circuit court’s denial of ARMC’s motion to dismiss

based on the statute of limitations, and I would affirm the circuit court’s denial of Yates

Engineering’s motion to dismiss Robertson’s claim based on judicial estoppel.

       I.     Yates Engineering

¶45.   Genuine issues of material fact exist, which precludes the grant of summary judgment.

During construction of the towers, Yates Construction, the general contractor, verbally

requested its sister company, Yates Engineering, to draw plans and specifications for the

scaffolding used to support the second-floor concrete slab during construction. However,

consistent with the prior practices between these separate entities, no written contract was

entered into by the parties governing the scope of Yates Engineering's duties. Likewise, no

contract existed between Yates Engineering and ARMC. Therefore, the issue before the

circuit court was whether Yates Engineering assumed a duty to inspect or supervise the

construction of the scaffolding by its conduct.

¶46.   "Engineers and architects are held to a duty to ‘exercise ordinary professional skill and

diligence,' duties usually controlled by the contracts between the parties." Family Dollar

Stores of Miss. Inc. v. Montgomery, 946 So. 2d 426, 430 (¶12) (Miss. Ct. App. 2006)

(quoting Hobson v. Waggoner Eng’g Inc., 878 So. 2d 68, 77 (¶35) (Miss. Ct. App. 2003)).

"Unless the architect has undertaken by conduct or contract to supervise a construction

project, he is under no duty to notify or warn workers or employees of the contractor or

subcontractor of hazardous conditions on the construction site." Jones v. James Reeves

Contractors Inc., 701 So. 2d 774, 786 (Miss. 1997). Yates Engineering contends that its only



                                              20
duty was to draw the plans and specifications of the scaffolding. However, the parties had

no written contract that precisely limited Yates Engineering's duty in that manner. Without

the benefit of a contract, it is necessary to examine the conduct of Yates Engineering in order

to determine whether it owed a duty to the Plaintiffs. Yates Engineering drew the very plans

for the scaffolding that collapsed, and it was their duty, without a contract specifying

otherwise, to ensure that the design was being followed and that the scaffolding was

reasonably safe.

¶47.   Perry, the Yates Construction superintendent, requested Ted Pope, a Yates

Engineering engineer, to draw plans and specifications for the construction of the

scaffolding. In response, Pope visited the site where Yates Construction had already begun

constructing the scaffolding. Pope observed the scaffolding, and testified that "there were

some wall shores up and, I think, some columns were being formed. But other than that I

can't recall." Deposition testimony reveals that Pope examined the partially constructed

scaffolding, and discussed his proposed plan and ideas for the completion of the scaffolding

with Mike Clark of Yates Construction, who was responsible for constructing the

scaffolding. Specifically, Pope testified:

       Q:     . . . Did you know at some point prior to you sending out your drawings
              that Yates [Construction] employees were erecting shoring
              [/scaffolding] prior to receiving your drawings?

       A:     Did I know that Yates [Construction] was doing shoring[/scaffolding]
              before receiving my drawings?

       Q:     Right.

       A:     I didn't know for a fact that they were.

                                              21
       Q:     What did you know?

       A:     I knew what I saw that day I came down here and talked to Mike.

       Q:     Did you know what they were planning on doing in the following days?

       A:     No.

       Q:     Did you ever learn that they had erected shoring[/scaffolding] prior to
              receiving your drawings?

       A:     No, I did not know.

       Q:     Did it matter to you whether they erected shoring prior to receiving
              your drawings?

       A:     Did it matter?

       Q:     To you.

       A:     Yeah. Yes.

       Q:     Okay. What was your opinion on whether they should erect
              shoring[/scaffolding] prior to receiving your drawings?

       A:     I just don't see how you can erect it without plans.

¶48.   According to Pope, he did not know whether Yates Construction had continued to

build the scaffolding prior to receiving his drawings that Perry had requested. Indeed, Pope

confirmed that continuing building the scaffolding was essential, as he testified: "I just don't

see how you can erect it without plans." Pope testified that there were some details that

Yates Construction needed to know that could only be gleaned from his plan drawings and

not solely through his discussions on site.

¶49.   There is a genuine issue of material fact of whether the construction of the scaffolding

was actually finished before Pope's final diagram was submitted. The Plaintiffs’ expert, Dr.

                                              22
Sinno, opined in his report that the construction was probably finished by the time the final

plans were submitted. The majority states that it is unclear how much of the scaffolding had

been built when Yates Construction received Pope’s drawings. I cannot say that there are

no genuine issues of material fact when the evidence is not even clear on how much of the

scaffolding had actually been constructed when Yates Construction received Pope’s design

drawings.

¶50.   It is undisputed that the as-built scaffolding by Yates Construction did not match

Yates Engineering's plans and specifications. The majority finds that there is no evidence

that Pope’s design caused the Plaintiffs’ injuries because Yates Construction did not actually

follow design drawings that it had commissioned from Pope. However, had Pope not

submitted fundamentally flawed and impossible-to-follow design drawings, Yates

Construction would not have been forced to ignore the deficient drawings and act on its own

by constructing the scaffolding without the benefit of sufficient drawings. Accordingly, I

would submit the issue of determining whether Yates Engineering caused the collapse to the

fact-finder. See Knox v. Mahalitc, 105 So. 3d 327, 329 (¶7) (Miss. Ct. App. 2011).

¶51.   A genuine issue of material fact exists relating to whether Pope's initial site visit

constituted an inspection in compliance with the Yates Safety Manual. A genuine issue of

material fact also exists regarding whether Pope conducted additional inspections of the

scaffolding. Perry, the Yates Construction superintendent, testified that he saw Pope, the

Yates Engineering engineer, at the construction-site office, a block away from the area where

the collapse occurred about a week before the collapse. Perry assumed that Pope performed



                                             23
an inspection of the scaffolding in accordance with the Yates Safety Manual, which requires

the erected shoring to be inspected by an engineer qualified in structural design. However,

Pope denies he ever went to the construction site or did not recall going there. The majority

states that “when pressed further,” Perry conceded his original answer on a previously

submitted OSHA form that stated he thought Pop had inspected the scaffolding. It is for the

jury to decide whether to believe the representations made by Perry on the OSHA form that

he thought Pope performed an inspection or that Yates Construction did not have an engineer

to inspect the scaffolding.

¶52.   I also would find that Pope undertook a duty to inspect the scaffolding even though

Pope denied inspecting or did not recall inspecting the scaffolding before the collapse. See

Doe ex rel. Doe v. Wright Sec. Servs. Inc., 950 So. 2d 1076, 1080 (¶12) (Miss. Ct. App.

2007) ("A duty also exists where a party contracts or otherwise assumes a duty."). This

undertaken duty is evidenced by the fact that Perry was under the impression, whether

through the actions of Pope or their conversations, that Pope was at the construction site

inspecting the scaffolding a week before the collapse. Moreover, Pope did not unequivocally

testify that he did not perform an inspection of the scaffolding. Pope simply testified that he

did not recall performing an inspection. In sum, Yates Engineering undertook a duty through

its conduct to ensure that the scaffolding was safe.

¶53.   "The moving party has the burden of demonstrating that no genuine issue of material

facts exists, and the non-moving party must be given the benefit of the doubt concerning the

existence of a material fact." Duckworth v. Warren, 10 So. 3d 433, 437 (¶9) (Miss. 2009).



                                              24
Yates Engineering has failed to meet its burden. Because there are genuine issues of material

fact that needed to be decided by the jury, I would find that summary judgment was

improperly granted in favor of Yates Engineering.

       II.    ARMC

¶54.   The circuit court initially denied ARMC's motion for summary judgment in a well-

reasoned opinion and order. According to the circuit court on its initial review of ARMC's

motion for summary judgment, the key issue was whether an agency relationship had been

established between ARMC and Yates Construction. Initially, the circuit court found that

there was a genuine factual issue for the jury as to whether the acts and conduct of ARMC

and Yates Construction was sufficient to create an agency relationship whereby ARMC could

be held liable if it was proven that a safe working environment was not provided.

Alternatively, the circuit court found that ARMC was not entitled to immunity as it is not the

type of contractor or statutory employer contemplated under the Workers' Compensation Act

and has not assumed responsibility under the Act.

¶55.   When ARMC was the only defendant remaining in the case, the circuit court entered

an order simply stating that it had reconsidered ARMC's motion for summary judgment and

found it was well-taken. The order provided that the circuit court found no genuine issue of

material fact remained with respect to the Plaintiffs' claims against ARMC, and it was

entitled to a judgment as a matter of law. I disagree.

¶56.   Mississippi Code Annotated section 11-1-66 (Rev. 2014), provides: "No owner,

occupant, lessee or managing agent of property shall be liable for the death or injury of an



                                             25
independent contractor or the independent contractor's employees resulting from dangers of

which the contractor knew or reasonably should have known." "Likewise, Mississippi

common law protects business owners from injuries sustained by independent contractors on

the work site." McSwain v. Sys. Entergy Resources Inc. 97 So. 3d 102, 108 (¶19) (Miss. Ct.

App. 2012). The exception to the rule is that "an employer is under a duty to provide an

independent contractor with a reasonably safe working environment or give warning of

danger." Id.

¶57.   "While the general rule is that the owner of the premises does not have a duty to

protect an independent contractor against risks arising from or intimately connected with the

work, there is an exception where the owner maintains substantial de jure or de facto control

over the work to be performed." Coho Resources Inc. v. McCarthy, 829 So. 2d 1, 13 (¶30)

(Miss. 2002). "While the owner of a premises, under Mississippi law, generally has a duty

to use reasonable care to keep its premises in a reasonably safe condition for business

invitees, the owner is not an insurer of the invitee's safety." Id. at 10 (¶20). "What is critical

is whether the project owner maintains any right of control over the performance of that

aspect of the work that has given rise to the injury." Magee v. Transcon. Gas Pipe Line

Corp., 551 So. 2d 182, 186 (Miss. 1989). "In this setting the undisputed language of the

contract becomes important." Id. With no formal written contract between ARMC and

Yates Construction, the conduct of the parties must be examined.

¶58.   ARMC possessed the ultimate right and ability to control all work on its premises,

including stoppages of any aspect of the construction for safety reasons or otherwise. The



                                               26
majority confirms that only ARMC had the authority to stop work on this project. The only

limitations on ARMC was that its ability to inspect the nature, quality, and safety of the work

was an "unwritten requirement" or "understanding" that ARMC would obtain permission

before entering the work zone for safety reasons. Farr, the vice president of operations at

ARMC, gave the following deposition testimony:

       Q:     If at any point during the work on this project, if the hospital had
              wanted to cease construction efforts, could it have done so?

       A:     Sure.

       Q:     Whether it be for financial or any other reason. There's nothing that
              you're aware of on behalf of the hospital that would have prevented
              them from ceasing further construction efforts on this project?

       A:     Not that I know of.

       ....

       Q:     If at any point in time the hospital was unsatisfied with the work that
              had been done, could the hospital have ordered the work to have been
              redone? In other words, to do it over again?

       A:     Yeah. If, for some reason - - if, for some reason, it wasn't meeting our
              expectations.

¶59.   I would not find that complying with this "unwritten requirement" or "understanding"

to perhaps put on a hard hat equates to a complete surrender of the premises to Yates

Construction. Moreover, Yates Construction occupied actual office space in ARMC during

the construction project. ARMC's right to control the progress of the construction work on

its premises is also evidenced by the fact that there was documentation setting a timeline for

completion of the project. ARMC argues that it is not in the construction business; however,



                                              27
Farr testified that the VPs have various duties, including clinical and nonclinical duties.

Additionally, an ARMC representative was present and participated at the monthly

construction progress meetings. Yates Construction would regularly call or contact Farr

outside of the regularly scheduled progress meetings because Yates Construction had certain

matters to address regarding the construction project, for which they needed Farr's input.

¶60.   An agency relationship may be shown by circumstantial evidence. Powell v. Masonite

Corp., 214 So. 2d 469, 470 (Miss. 1968) (citing Hobbs v. Int’l Paper Co., 203 So. 2d 488

(Miss. 1967)). The long continued employment of a person or entity that may be terminable

at will is a strong indicator that the entity is not an independent contractor, but has assumed

the status of an employee. Id. Regardless of the classification of Yates Construction and

whether it assumed the status of an employee, both an independent contractor and a servant

may be agents of their principal. See Richardson v. APAC - Miss., 631 So. 2d 143, 147-48

(Miss. 1994).

¶61.   I would also find that a genuine issue of material fact exists in determining whether

an agency relationship existed between ARMC and Yates Construction. Consistent with the

normal course of business for a significant amount of time, no contract existed between

ARMC and Yates Construction pertaining to this construction project. Farr testified that

Yates Construction has maintained a physical presence on ARMC's campus for more than

twenty years.

¶62.   Alternatively, ARMC argues that it should enjoy the protections of a “statutory

employer" under the Mississippi Workers' Compensation Act. I disagree. ARMC is not the



                                              28
type of contractor or statutory employer as contemplated by the Mississippi Workers'

Compensation Act. See Richmond v. Benchmark Const. Corp., 692 So. 2d 60, 63 (Miss.

1997) (finding where defendant property owners had no responsibility under the Workers'

Compensation Act, they enjoy none of the benefits of the Act).

       III.   Foil Wyatt

¶63.   The circuit court stated in its opinion granting summary judgment in favor of Foil

Wyatt that an architect may be held liable for workplace injuries only if it assumes by

contract or conduct the responsibilities of the supervision of construction and maintenance

of safe conditions on the construction project. See Jones, 701 So. 2d at 785-86. I cannot be

certain that Foil Wyatt did not exhibit any conduct that would make it appear that it had

assumed any duties because this case is factually sensitive. Also, the record is not clear as

to whether the dismissal of the opinion of the expert, Dr. Sinno, was relevant in determining

whether Foil Wyatt assumed responsibility by its conduct. I agree that Foil Wyatt is

protected by its contract, but I am not willing to assume the role of the jury and dissolve the

issue of whether Foil Wyatt exhibited any conduct that made it appear that it had assumed

responsibility. This case is factually sensitive, and these facts should be decided by a jury.

¶64.   In Jones, the court stated:

       We philosophically disagree with the holdings of Hanna and Walker to the
       extent that they hold that a contractual duty to maintain actual supervision over
       the details of the construction project does not entail the duty to supervise
       safety. It would seem natural that the supervision of safety is encompassed in
       the duty to supervise, and no separate agreement to supervise safety is
       necessary where the architect is supervising the details of every other aspect
       of the project.



                                              29
Id. at 785. In Hobson, 878 So. 2d 68, 73 (¶18) (Miss. Ct. App. 2003), this Court interpreted

this language in Jones "to mean that if the engineer has contracted to supervise every other

aspect of the project besides safety, then liability, with regard to safety, may then be extended

to the engineer in some circumstances, regardless of contractual obligations[.]" The court

also adopted the aforementioned Hanna factors identified in the majority opinion.

¶65.   I would find Foil Wyatt's conduct was sufficient to establish a duty, thereby

precluding summary judgment. Foil Wyatt was a regular visitor to the construction site and

a participant in the onsite project meetings between the contractor, various subcontractors,

and the owner. Skip Wyatt testified that he was on the job site once a week, and after the

monthly progress meetings, he would walk around the construction site in order to note how

much work had been completed so that he could certify payments to Yates Construction.

Foil Wyatt provided specifications for the formwork and rebar. Moreover, Foil Wyatt was

at liberty to reject work that did not conform to the contract documents. For example, Foil

Wyatt could request that a concrete slab be redone if it was uneven or did not conform with

specifications.

¶66.   I agree with the Plaintiffs’ argument that any inspections of the formwork conducted

by Foil Wyatt to ensure that the concrete would be true when poured would necessarily

included an observation and inspection of the underlying supporting scaffolding. Testimony

reveals that the subject scaffolding was inadequate to the most casual observer. Telly

Walsworth, the owner of Spectrum II who employed the Plaintiffs, gave the following

testimony:



                                               30
       Q:     All right. Did it appear that the shoring[/scaffolding] had been
              constructed safe and did it look stable to you?

       A:     It looked kind of homemade. I’ve never seen nothing like it before.

       Q:     Okay. Did you tell anybody at Yates Construction about it?

       A:     Yes. I told Mr. Clark, who was the superintendent. I told him that it
              didn’t look safe and I didn’t feel like it would work. He said, “Well,
              we’ve been doing this 30-something years. Get up there. It’s going to
              be fine.”

¶67.   Clearly, Walsworth was concerned about the appearance of the scaffolding, which

would support the eventual concrete pour. Wyatt and Perry, of Yates Construction, inspected

the formwork to ensure that wet concrete would not leak out of it. Wyatt could not recall if

the scaffolding was finished at the time of the inspection, but he confirmed he did not inspect

it. If the scaffolding was completed at the time of the inspection of the formwork, Wyatt

should have been alerted to the scaffolding, which Walsworth described as “homemade.”

Nonetheless, Wyatt inspected the rebar approximately a week before the collapse. Had the

scaffolding not been completed at the time of the inspection, Wyatt should have noticed the

“homemade” appearing scaffolding during one of his walks through the construction site.

¶68.   It would seem natural that the design and inspection of the formwork extended to the

scaffolding that supported the formwork. Certainly, it was not part of the plans and

specifications for the formwork to collapse and have to be rebuilt. I cannot say that the duty

to inspect the formwork and ensure compliance with the formwork plans and specifications

did not also impose a duty to inspect the scaffolding, which supported the formwork. Foil

Wyatt was contractually obligated to visit the site to become generally familiar with the



                                              31
progress and quality of the work and endeavor to guard ARMC against defects and

deficiencies in the construction. I would find that Foil Wyatt assumed a duty by its conduct

to provide a safe working environment.         A genuine issue of material fact exists in

determining whether that duty was breached. Accordingly, I would reverse the summary

judgment that was entered in favor of Foil Wyatt.

       IV.    Whether the circuit court erred by dismissing Medina's claim
              based on his alleged illegal-alien status in favor of Yates
              Engineering and ARMC.

¶69.   One of the Plaintiffs, Medina, invoked the Fifth Amendment and repeatedly declined

to verify his citizenship and work status during his deposition testimony. The circuit court

surmised that he was an illegal alien and concluded that but for his illegal employment,

Medina would not have been injured during the construction accident during the course of

his employment. The circuit court dismissed Medina's case, without prejudice to his recovery

of statutory workers' compensation benefits, under the wrongful-conduct rule, which

provides that "no court will lend its aid to a party who founds his cause of action upon an

immoral or illegal act." Price v. Purdue Harma Co., 920 So. 2d 479, 484 (¶13) (Miss. 2006).

¶70.   The circuit court reached its decision relying on Price. However, in Price, the court

also stated: "At the same time, if the plaintiff is a lawbreaker at the time of his injury, that

alone is not enough to bar the plaintiff from recovery." Id. at 485 (¶14). "The injury must

be traceable to his own breach of the law and such breach must be an integral and essential

part of the case." Id. In Price, the plaintiff was refused compensation for his personal-injury

claim against pharmaceutical entities due to his abuse of OxyContin, which caused him the



                                              32
very harm for which he was seeking compensation. Id.

¶71.   Medina contends that there has been no finding of a causal connection between

Medina's alleged illegal-immigrant status and his injuries. I agree. Medina's alleged illegal-

immigrant status alone is not enough to bar him from recovery. Although the circuit court

found cause in fact, unlike the plaintiff in Price, Medina's alleged illegal conduct was not an

integral and essential part of his case such as to prevent his recovery under the wrongful-

conduct rule.

¶72.   The circuit court also noted that allowing Medina to recover for injuries sustained

during the course of his own illegal conduct would be contrary to public policy. However,

undocumented-immigrant plaintiffs have been allowed to seek recovery for personal injuries

suffered in the workers' compensation context, specifically under the Longshore and Harbor

Workers Compensation Act. See Bollinger Shipyards Inc. v. Director, Office of Worker's

Compensation Programs, 604 F.3d 864, 873 (5th Cir. 2010) (holding that undocumented

immigrants are eligible to recover workers' compensation benefits under the LHWCA).

Similarly, Medina's alleged illegal-immigrant status, standing alone, does not prevent him

from pursuing a personal-injury claim. See Moreau v. Oppenheim, 663 F.2d 1300, 1307-08

(5th Cir. 1981) ("Even assuming that violations of the immigration laws by the [plaintiffs]

occurred, the remedy for these violations is . . . criminal sanctions, not denial of access to

court.").

       V.       Whether the circuit court erred by denying Yates Engineering’s
                motion to dismiss Robertson.

¶73.   Yates Engineering cross-appeals claiming that the circuit court erred by denying its


                                              33
motion for summary judgment against one of the Plaintiffs, Robertson, under the theory of

judicial estoppel for failing to disclose his personal-injury cause of action. I disagree.

¶74.   On December 23, 2007, before the collapse, Robertson and his wife, LaDonna

Robertson, filed for Chapter 13 bankruptcy. The bankruptcy court confirmed the plan on

March 25, 2008, and Robertson and his wife began making payments under the plan. The

collapse occurred on November 17, 2008. Following the collapse, Robertson and his wife

defaulted on their payments, and the bankruptcy trustee filed an action to dismiss or remedy

the default on March 12, 2009. On June 6, 2010, Robertson's bankruptcy case was dismissed

for a default in payments. No discharge or other relief was granted to the Robertsons. On

September 1, 2010, Robertson filed his complaint in this personal-injury case.

¶75.   Robertson's personal-injury claim arose after he filed his bankruptcy petition and after

his Chapter 13 plan was approved by the bankruptcy court. Similarly, in Copiah County v.

Oliver, 51 So. 3d 205, 207 (¶8) (Miss. 2011), Oliver's personal-injury cause of action arose

after she had filed her bankruptcy petition and after her Chapter 13 repayment plan was

approved by the bankruptcy court. Id. The circuit court in Oliver issued a stay and referred

the matter to the bankruptcy court for an assessment of the application of judicial estoppel.

Id. at (¶11). When the matter was referred to the bankruptcy court, Oliver was making

payments under an active bankruptcy plan. Id. at 206 (¶4). However, unlike Oliver,

Robertson's bankruptcy case had been dismissed for failure to make payments, and no

discharge had been granted at the time Yates Engineering raised the issue of judicial

estoppel.



                                              34
¶76.   The circuit court found that it could not refer the case back to Robertson's non-existent

bankruptcy proceeding as the circuit court did in Oliver. The circuit court correctly

concluded that because Robertson's bankruptcy case had been dismissed and no discharge

had been granted, judicial estoppel is not applicable. Robert's failure to disclose his personal

injury case was of no consequence. Robertson received no benefit for his failure to disclose

his personal-injury claim. Finding no error, I would affirm the circuit court's denial of Yates

Engineering's motion to dismiss Robertson's case based on judicial estoppel.

       VI.     Whether the circuit court erred by denying ARMC's motion to
               dismiss based on the statute of limitations.

¶77.   ARMC claims the circuit court erred by denying its Rule 12(b)(6) motion to dismiss

because the Plaintiffs’ claims against it are barred by the three-year statute of limitations.

I disagree. I would find that the Plaintiffs' claims against ARMC were not barred by the

statute of limitations.

¶78.   The collapse occurred on November 17, 2008, and it is undisputed that the applicable

statute of limitations is three years. On January 26, 2011, the court held a hearing on Yates

Construction's motion to stay the proceedings. On February 11, 2011, the circuit court

entered an order staying the proceedings pending the resolution of the declaratory-judgment

action in the United States District Court for the Southern District of Mississippi. The circuit

court's order provided that the statute of limitations was "hereby tolled from January 26,

2011[,] until this Court lifts the subject stay pursuant to Mississippi Code Annotated section

15-1-57 (Rev. 2012)." The circuit court ordered that "the parties shall obtain a hearing date

before [the circuit court] where the Plaintiffs will be allowed to apply to the Court to lift the


                                               35
stay.” The circuit court also ordered that "[t]he tolling of the statute of limitations during this

time shall continue until [the circuit court] lifts the stay and allows Plaintiff to prosecute their

actions herein." On September 6, 2011, the circuit court lifted the stay. Mississippi Code

Annotated section 15-1-57 provides:

       Where any person shall be prohibited by law, or restrained or enjoined by
       order, decree, or process of any court in this state from commencing or
       prosecuting any action or remedy, the time during which such person shall be
       so prohibited, enjoined or restrained, shall not be computed as any part of the
       period of time limited by this chapter from the commencement of such action.

¶79.   Thus, the statute of limitations was tolled from January 26, 201l, until September 16,

2011, because the Plaintiffs' ability to prosecute their claims was restrained. Under section

15-1-57, the 233 days that the proceedings were stayed cannot be computed as part of the

running of the statute of limitations. Therefore, the Plaintiffs' second amended complaint

adding ARMC on June 8, 2012, was not time-barred. Moreover, ARMC was actively

involved in this litigation as evidenced by its participation in the hearings contained in the

record before it was added as a defendant. Finding no error, I would affirm the circuit court's

denial of ARMC's motion to dismiss.

¶80.   For the reasons stated in my dissent, I would reverse the summary judgment granted

in favor of Yates Engineering, ARMC, and Foil Wyatt. I would also reverse the summary

judgment granted against Medina. I would affirm the circuit court’s denial of the motion to

dismiss against Robertson. I would also affirm the circuit court's denial of ARMC's motion

to dismiss. Accordingly, I would remand this case for a trial on the merits.




                                                36
