2005 Regular Session

To: Insurance

By: Representative Guice, Formby

House Bill 730



     SECTION 1.  Section 71-3-9, Mississippi Code of 1972, is amended as follows:

     71-3-9.   The liability of an employer and carrier to pay compensation shall be exclusive and in place of all other liability of such employer and carrier to the employee, his legal representative, husband or wife, parents, dependents, next-of-kin, and anyone otherwise entitled to recover damages at common law or otherwise from such employer and carrier on account of such injury or death, except that if an employer fails to secure payment of compensation as required by this chapter, an injured employee, or his legal representative in case death results from the injury, may elect to claim compensation under this chapter, or to maintain an action at law for damages on account of such injury or death.  In such action the defendant may not plead as a defense that the injury was caused by the negligence of a fellow servant, nor that the employee assumed the risk of his employment, nor that the injury was due to the contributory negligence of the employee.  For purposes of this section, "carrier" includes groups of employers who have pooled liabilities under Section 71-3-75(3).

     This exclusive liability of the employer and carrier precludes all claims or causes of action of any nature whatsoever against the employer or carrier in contract or in tort, intentional or otherwise, arising out of or in any way associated with claims covered under this chapter including, but not limited to, bad faith claims arising out of or in any way associated with the processing or handling of claims covered under this chapter.

     However, if the three (3) commissioners of the Mississippi Workers' Compensation Commission, or a majority of such commissioners, determine that there is clear and convincing evidence of a continuous willful, intentional and malicious course of conduct on behalf of the employer or carrier, or both of them, associated in any way with the processing or handling of a claim covered under this chapter which constitutes bad faith or any other intentional tort arising out of or in any way associated with the processing or handling of a claim covered under this chapter, without an arguable reason for such continuous course of conduct, there shall be imposed on the employer or carrier, or both, a penalty in an amount not to exceed ten percent (10%) of the untimely paid benefits due at the time such determination is made by the commissioners, which penalty shall be in addition to other penalties that may be imposed under this chapter.  In no event shall any penalty under this section exceed ten percent (10%) of the maximum recovery specified under Section 71-3-13(2).

     As of July 1, 2005, damages in civil litigation cases for intentional torts including, but not limited to, bad faith refusal to pay benefits, arising out of or in any way associated with the processing or handling of a claim covered under this chapter, shall not exceed one-half of one percent (1/2 of 1%) of the combined net worth of the defendants in each such case; however, damages for intentional torts in each such case shall in no event exceed the sum of Fifty Thousand Dollars ($50,000.00).  In respect to the determination of net worth, the party or parties against whom such damages are being sought may stipulate, in lieu of determining net worth, that the limitation of Fifty Thousand Dollars ($50,000.00) of damages is applicable. 

     SECTION 2.  Section 71-3-3, Mississippi Code of 1972, is amended as follows:

     71-3-3.  Unless the context otherwise requires, the definitions which follow govern the construction and meaning of the terms used in this chapter:

          (a)  "Person" includes an individual, firm, voluntary association or a corporation.

          (b)  "Injury" means * * * injury or * * * death arising out of and in the course of employment, or resulting from a risk created by employment conditions, without regard to fault which results from an untoward event or events, if contributed to or aggravated or accelerated by the employment in a significant manner.  Untoward event includes events causing unexpected results.  An untoward event or events shall not be presumed to have arisen out of and in the course of employment, except in the case of an employee found dead in the course of employment.  This definition includes injuries to artificial members, and also includes an injury caused by a willful act * * * directed against an employee because of his employment while so employed and working on the job, and disability or death due to exposure to ionizing radiation from any process in employment involving the use of or direct contact with radium or radioactive substances with the use of or direct exposure to roentgen (X-rays) or ionizing radiation.  In radiation cases only, the date of disablement shall be treated as the date of the accident.  Occupational diseases, or the aggravation thereof, are excluded from the term "injury," provided that, except as otherwise specified, all provisions of this chapter apply equally to occupational diseases as well as injury.

          (c)  "Death," when mentioned as a basis for the right to compensation, means only death resulting from such an injury.

          (d)  "Employee" means any person, including a minor whether lawfully or unlawfully employed, in the service of an employer under any contract of hire or apprenticeship, written or oral, express or implied, provided that there shall be excluded therefrom all independent contractors and especially any individual performing service in, and at the time of, the sale of newspapers or magazines to ultimate consumers under an arrangement under which the newspapers or magazines are to be sold by the individual at a fixed price, the individual's compensation being based on the retention of the excess of such price over the amount at which the newspapers or magazines are charged to the individual, whether or not the individual is guaranteed a minimum amount of compensation for such service or is entitled to be credited with the unsold newspapers or magazines returned.  A student of an educational institution who, as a part of such educational institution's curriculum, is receiving practical training at any facility, who is under the active and direct supervision of the personnel of the facility and/or an instructor of the educational institution, and who is not receiving wages as a consequence of participation in such practical training shall not be considered an employee of such facility on account of participation in such practical training.

          (e)  "Employer," except when otherwise expressly stated, includes a person, partnership, association, corporation and the legal representatives of a deceased employer, or the receiver or trustee of a person, partnership, association or corporation.

          (f)  "Carrier" means any person authorized in accordance with the provisions of this chapter to insure under this chapter and includes self-insurers.

          (g)  "Self-insurer" is an employer who has been authorized under the provisions of this chapter to carry his own liability on his covered employees without insuring in a stock or mutual carrier.

          (h)  "Commission" means the Workers' Compensation Commission.

          (i)  "Disability" means incapacity because of injury to earn the wages which the employee was receiving at the time of injury in the same or other employment, which incapacity and the extent thereof must be supported by medical findings.

          (j)  "Compensation" means the money allowance payable to an injured worker or his dependents as provided in this chapter, and includes funeral benefits provided therein.

          (k)  "Wages" includes the money rate at which the service rendered is recompensed under the contract of hiring in force at the time of injury, and also the reasonable value of board, rent, housing, lodging or similar advantage received from the employer and gratuities received in the course of employment from others than the employer.  The term "wages" shall not include practical training received by students of an educational institution as a part of such educational institution's curriculum.

          (l)  "Child" shall include a posthumous child, a child legally adopted prior to the injury of the employee, a child in relation to whom the deceased employee stood in the place of a parent for at least one (1) year prior to the time of injury and a stepchild or acknowledged illegitimate child dependent upon the deceased, but does not include married children unless wholly dependent on him.  "Grandchild" means a child as above defined of a child as above defined.  "Brother" and "sister" include stepbrothers and stepsisters, half brothers and half sisters, and brothers and sisters by adoption, but does not include married brothers nor married sisters unless wholly dependent on the employee.  "Child," "grandchild," "brother" and "sister" include only persons who are under eighteen (l8) years of age, and also persons who, though eighteen (l8) years of age or over, are wholly dependent upon the deceased employee and incapable of self-support by reason of mental or physical disability, and also a child eighteen (18) years of age or older, until his twenty-third birthday, who is dependent upon the deceased and is pursuing a full-time education.

          (m)  "Parent" includes stepparents and parents by adoption, parents-in-law or any person who for more than three (3) years prior to the death of the deceased employee stood in the place of a parent to him, or her, if dependent on the injured employee.

          (n)  The term "surviving spouse" includes the decedent's legal wife or husband, living with him or her or dependent for support upon him or her at the time of death or living apart for justifiable cause or by reason of desertion at such time, provided, however, such separation had not existed for more than three (3) years without an award for separate maintenance or alimony or the filing of a suit for separate maintenance or alimony in the proper court in this state.  The term "surviving spouse" shall likewise include one not a legal wife or husband but who had entered into a ceremonial marriage with the decedent at least one (1) year prior to death and who, on the date of the decedent's death, stood in the relationship of a wife or husband, provided there was no living legal spouse who had protected her or his rights for support by affirmative action as hereinabove required.  The term "surviving spouse" as contemplated in this chapter shall not apply to any person who has, since his or her separation from decedent, entered into a ceremonial marriage or lived in open adultery with another.

          (o)  The term "adoption" or "adopted" means legal adoption prior to the time of the injury.

          (p)  The singular includes the plural and the masculine includes the feminine and neuter.

          (q)  It is expressly provided, agreed and understood in determining beneficiaries under this section that a surviving spouse suffering a mental or physical handicap and children under the age of eighteen (18) years are presumed to be dependent.

          (r)  "Independent contractor" means any individual, firm or corporation who contracts to do a piece of work according to his own methods without being subject to the control of his employer except as to the results of the work, and who has the right to employ and direct the outcome of the workers independent of the employer and free from any superior authority in the employer to say how the specified work shall be done or what the laborers shall do as the work progresses, one who undertakes to produce a given result without being in any way controlled as to the methods by which he attains the result.

          (s)  "Average weekly wage for the state" means an amount determined by the commission as of October 1 of each year based upon wage and employment statistics reported to the commission by the Mississippi Employment Security Commission.  Such amount shall be based upon data for the preceding twelve-month period and shall be effective from and after January 1 of the following year.

     SECTION 3.  Section 71-3-1, Mississippi Code of 1972, is amended as follows:

     71-3-1.  This chapter shall be known and cited as "Workers' Compensation Law," and shall be administered by the Workers' Compensation Commission, hereinafter referred to as the "commission," cooperating with other state and federal authorities for the prevention of injuries and occupational diseases to workers and, in event of injury or occupational disease, their rehabilitation or restoration to health and vocational opportunity; and this chapter shall be fairly construed according to the law and the evidence.

     Wherever used in this chapter, or in any other statute or rule or regulation affecting the former Workmen's Compensation Law and any of its functions or duties:

          (a)  The words "workmen's compensation" shall mean "workers' compensation"; and

          (b)  The word "commission" shall mean the Workers' Compensation Commission.

     It is the specific intention of the Legislature that the Mississippi Workers' Compensation Law shall be fairly, impartially and even-handedly construed, that the Mississippi Workers' Compensation Law shall not be liberally construed in favor of any party in any proceeding under this chapter and that all determinations of doubtful issues of fact shall be made by the commission on impartial and even-handed bases.  Any violation of this legislative mandate shall constitute reversible error as a matter of law.

     SECTION 4.  This act shall take effect and be in force from and after July 1, 2005.