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

                                                                FILED
                                                               October 6, 2008
                              No. 07-61009
                            Summary Calendar             Charles R. Fulbruge III
                                                                 Clerk




ROBERT J. ELLIS,

                                        Plaintiff-Appellant,

LIBERTY MUTUAL INSURANCE COMPANY,

                                        Intervenor Plaintiff-Appellant,

v.

TRUSTMARK BUILDERS, INC.;
SCOTTY JONES, Individually and as Employee/Agent of Landings
Associates, Ltd., The Mitchell Company, and Trustmark Builders, Inc.,

                                        Defendants-Appellees.




                Appeal from the United States District Court
                  for the Southern District of Mississippi
                             No. 1:04-CV-120
                                       No. 07-61009

Before SMITH, BARKSDALE, and ELROD, Circuit Judges.
JERRY E. SMITH, Circuit Judge:*


       Robert Ellis was injured in the course of his employment on a construction
project in Mississippi. The relationships between the relevant parties can be
summarized briefly. The property on which the construction took place was
owned by Landings Associates (“Landings”), which hired The Mitchell Company
(“Mitchell”) as general contractor; Mitchell hired defendant Trustmark Builders
(“Trustmark”) as a subcontractor, and Trustmark hired Rusty Stevens, Ellis’s
immediate employer, as a sub-subcontractor. Ellis was injured when he fell from
a lifting apparatus constructed by Scotty Jones, an employee of Trustmark.
       Landings, Mitchell, and Trustmark are incorporated in Alabama and have
their principal places of business there. Ellis had worked for Stevens in Ala-
bama for some months before his injury. Alabama is also the state of residence
of Jones and Stevens and the state in which Stevens had obtained workers’ com-
pensation insurance. Though Ellis has in fact received compensation for his in-
juries under the Alabama Workers’ Compensation Law, he sought additional
damages in tort.
       Whether Ellis’s suit may proceed depends on whether the Alabama or Mis-
sissippi workers’ compensation system applies. The Mississippi Workers’ Com-
pensation Law, MISS. CODE ANN. § 71-3-1 et seq., provides an exclusive remedy
for employment-related injuries occurring within its ambit.1 This precludes in


       *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
       1
         Compare MISS. CODE ANN. § 71-3-7 (“Compensation shall be payable for disability or
death of an employee from injury or occupational disease arising out of and in the course of em-
ployment, without regard to fault as to the cause of the injury or occupational disease.”) with
MISS. CODE ANN. § 71-3-9 (“The liability of an employer to pay compensation shall be exclusive
                                                                                  (continued...)

                                               2
                                          No. 07-61009

jured employees from seeking additional remedies, such as in tort, from their
employers or co-employees.2 In contrast, Alabama permits tort suits in workers’
compensation cases even where the injured employee has received workers’ com-
pensation benefits.3
       The district court, deciding that Mississippi law applies, granted summary
judgment to Trustmark. Ellis appeals, and we vacate and remand.


                                                 I.
       We review a summary judgment de novo, see Potter v. Delta Airlines Corp.,
98 F.3d 881, 883 (5th Cir. 1996), and affirm “if the pleadings, the discovery and
disclosure materials on file, and any affidavits show that there is no genuine is-
sue as to any material fact and that the movant is entitled to judgment as a mat-
ter of law,” FED. R. CIV. P. 56(c). Here, where the parties appear to be in agree-
ment on all relevant facts, we proceed to consider the law.


                                                 II.
       The question of which state’s law applies is one of choice of law, and, as a
federal court sitting in diversity, the district court was required to apply Missis-
sippi choice-of-law rules.4 Mississippi follows the choice-of-law rules set out in

       1
         (...continued)
and in place of all other liability of such employer to . . . anyone . . . at common law or
otherwise.”). See also Wachtler v. State Farm Mut. Auto. Ins. Co., 835 So. 2d 23, 26, 28 (Miss.
2003) (concluding that “workers compensation is the exclusive remedy for an injured employee
against a co-employee”).
       2
           See Perkins v. Ins. Co. of N. Am., 799 F.2d 955, 958-59 (5th Cir. 1986).
       3
        See ALA. CODE ANN. § 25-5-11 (“If the injury . . . was caused under circumstances also
creating a legal liability for damages on the part of any party other than the employer . . . the
employee . . . may . . . recover compensation under this chapter . . . and at the same time, may
bring an action against the other party to recover damages . . . .”).
       4
           See Vasquez v. Bridgestone/Firestone, Inc., 325 F.3d 665 (5th Cir. 2003) (citing Klaxon
                                                                                     (continued...)

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                                        No. 07-61009

the RESTATEMENT (SECOND) OF CONFLICTS OF LAW (“RESTATEMENT”), also known
as the “center of gravity” or “most substantial contacts” approach.5 Using that
method, a Mississippi court, and thus the district court, must apply the law of
the state with “the most significant relationship” (as determined through an
elaborate balancing test) to the case’s subject matter,6 unless there is an applic-
able statutory directive.7 The district court correctly noted all this but erred in
concluding that the Mississippi Code contains such a directive.
       The “Extraterritorial Provisions” of the Mississippi Workers’ Compensa-
tion Law, on which the district court focused its attention, address the applica-
tion of that law to “employee[s] who [have] been hired or [are] regularly em-
ployed outside of [Mississippi] and [their] employer[s]” while the employees are
“temporarily within [Mississippi] doing work for [their] employer[s].” MISS.
CODE ANN. § 71-3-109(3). That provision continues as follows:
       Any employee who has been hired or is regularly employed outside
       of this state and his employer shall be exempted from the provisions
       of this chapter while such employee is temporarily within this state
       doing work for his employer if such employer has furnished work-
       men’s compensation insurance coverage under the workmen’s com-
       pensation or similar laws for a state other than this state so as to
       cover such employee’s employment while in this state, provided the
       extra-territorial provisions of this chapter are recognized in such
       other state and provided employers and employees who are covered
       in this state are likewise exempted from the application of the work-
       men’s compensation or similar laws of such other state. The bene-
       fits under the workmen’s compensation or similar laws of such other
       state shall be the exclusive remedy against such employer for any
       injury, whether resulting in death or not, received by such employee


       4
         (...continued)
Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487, 496 (1941).
       5
           See Church v. Massey, 697 So. 2d 407, 410 & n.1 (Miss. 1997).
       6
           See id.
       7
           See Mitchell v. Craft, 211 So. 2d 509, 515 (Miss. 1968) (quoting RESTATEMENT § 6).

                                               4
                                       No. 07-61009

       while working for such employer in this state.

Id.
       The district court, citing LaDew v. LaBorde, 63 So. 2d 56 (Miss. 1953),8 and
Roynon v. Janet’s Cleaning Service, 521 A.2d 1271 (Md. Ct. Spec. App. 1987) (ap-
plying Maryland’s virtually identical statute), interpreted this language as creat-
ing a free-standing statutory framework to govern choice of law in workers’ com-
pensation cases such as this. According to the district court, § 71-3-109(3) re-
quires that the Mississippi Workers’ Compensation Law be applied to injured
workers such as Ellis when two conditions are met: First, the employer must
“furnish workmen’s compensation insurance coverage under the workmen’s com-
pensation or similar laws for a state other than this state so as to cover such em-
ployee’s employment while in [Mississippi].” Second, the extraterritorial provi-
sions of the Mississippi statute must be “recognized” by the other state whose
coverage the employer elects to provide. See § 71-3-109(3).
       Where this test is satisfied, under the district court’s reading, the other
state’s law takes precedence over Mississippi’s. The district court found that El-
lis did not meet the test. Though Stevens provided Alabama workers’ compensa-
tion to Ellis, the court decided that the Alabama statute does not “recognize” the
extraterritorial provisions of Mississippi law set out in § 71-3-109(3), so the
Mississippi law would not yield to Alabama’s, and, because Mississippi’s law
does not permit Ellis’s suit, the court granted summary judgment.
       To the extent that the district court followed the test set out in LaDew, it
seems to have done so correctly. The LaDew court, however, employed that test
only after its initial choice-of-law analysis showed that Mississippi law applied




       8
        LaDew applied the predecessor statute of § 71-3-109(3). The texts are identical in all
relevant respects, however, and LaDew remains the only Mississippi case on-point.

                                              5
                                       No. 07-61009

in the first place.9 This court made that explicit in Dueitt v. Williams, 764 F.2d
1180, 1182 (5th Cir. 1985), baldly stating that “the statute [§ 71-3-109(3)] is not
one governing conflict of laws.”
       In other words, § 71-3-109(3) is not a statutory directive that takes the
place of Mississippi’s ordinary choice-of-law rules, which remain antecedent to
application of § 71-3-109(3). Therefore, before the district court may consider
§ 71-3-109(3), it must find that Mississippi choice-of-law rules direct it to apply
Mississippi law. If consideration of those choice-of-law rules directs the district
court to Alabama law, then § 71-3-109(3) is irrelevant.
       The district court did not consider Mississippi choice-of-law rules at all, in-
stead focusing exclusively on the statute. The parties have discussed Mississippi
choice of law in their briefs, but the district court is the better forum for deciding
their competing arguments. We therefore VACATE and REMAND with instruc-
tion that the district court consider whether Mississippi or Alabama law applies
and for other proceedings as appropriate.




       9
         See LaDew, 63 So. 2d at 58 (“We conclude, therefore, that the Mississippi compensa-
tion act was properly enforced in the case at bar, unless its application is excluded by its own
terms in [§ 71-3-109(3)].”).

                                               6
