author: EASLEY, Justice, DIAZ, Presiding Justice,

text:
    W. Mark MEEKS, M.D. v. Sheila Fox MILLER, Peggy Fox Watz and Gary Merkell Fox, Next Friends and Sole Beneficiaries of the Intestate Estate of Merkell M. Fox.
    No. 2005-CT-00200-SCT.
    Supreme Court of Mississippi.
    May 24, 2007.

      C. York Craig, Jr., Ridgeland, Paul Hobart Kimble, J. Lawson Hester, Jamie D. Travis, Jackson, attorneys for appellant.
    Barry Stuart Zirulnik, Jackson, Carlton W. Reeves, attorneys for appellees.
   ON WRIT OF CERTIORARI

EASLEY, Justice,

for the Court.

¶ 1. Merkell M. Fox (Fox) filed a medical malpractice lawsuit against Dr. W. Mark Meeks (Dr. Meeks) on February 28, 1995, for treatment Fox received from Dr. Meeks in late 1993. Following Fox’s death, the trial court substituted Fox’s beneficiaries, Sheila Fox Miller, Peggy Fox Watz, and Gary Merkell Fox (collectively “Miller”), as the plaintiffs. In 1998, the trial court granted Dr. Meeks’s motion for summary judgment. Feeling aggrieved, Miller appealed that decision to this Court.

¶ 2. On appeal, this Court remanded the case to the trial court for a determination of the factual issue of whether Dr. Meeks was acting as an employee of the University of Mississippi Medical Center (UMMC) when he treated Fox. See Miller v. Meeks, 762 So.2d 302 (Miss.2000) (Miller I). The Court established five factors to be analyzed to determine whether an individual is an employee or an independent contractor. Miller I, 762 So.2d at 310.

¶3. On remand, the trial court denied Dr. Meeks’s motion for summary judgment, finding:

[A]t all times material relevant to the rendition of professional medical services to M. Merkell Fox, W. Mark Meeks, M.D.[,] acted in the capacity of a private person engaged in [the] private practice of medicine and as an independent contractor and not in his capacity as a State employee.

¶ 4. Following the judgment of the trial court on remand, the case was again appealed. This time, Dr. Meeks appealed the trial court’s ruling to this Court, and the appeal was assigned to the Mississippi Court of Appeals. The Court of Appeals examined the trial court’s analysis of the five Miller factors to be considered and reversed the trial court’s denial of Dr. Meeks’s summary judgment. Meeks v. Miller, 956 So.2d 942, 945, 2006 WL 1737757, 2006 MissApp. LEXIS 500, 8-9 (Miss.Ct.App.2006).

The Court of Appeals stated:

During the period that the alleged negligence occurred, September 22, 1993, through December 13, 1993, Dr. Meeks was employed by the Board of Trustees of State Institutions of Higher Learning of the State of Mississippi (the “Board”) as an Assistant Professor of Medicine at the UMMC. Dr. Meeks entered into an employment contract with UMMC in April of 1993.
Pursuant to his contract, Dr. Meeks was required to be a member of the University of Mississippi Clinical Associates (“UMCA”) and participate in the practice plan of the Division of General Internal Medicine. Dr. Meeksf’s] membership in these associations was due to his status as a faculty member at UMMC.
Dr. Meeks was paid a base salary of $77,279, and he had the right to earn 100% of additional income generated through fees up to $140,000, inclusive of the base salary. Upon reaching the threshold amount of $140,000, any additional earnings were to be split evenly between Dr. Meeks and UMMC. This additional income was generated through participation in the practice plan, where he had a clinieal practice and treated patients at the UMMC Pavilion.

Meeks, 956 So.2d at 945, 2006 Miss.App. LEXIS 500 at 8-9. The Court of Appeals further stated:

Because we find that Dr. Meeks was an employee of UMMC and as a result [of being] a state employee, we hold that the trial court erred when it denied Dr. Meeks’ summary judgment. As an employee of UMMC, Dr. Meeks is immune from liability.

Meeks, 956 So.2d at 951, 2006 Miss.App. LEXIS 500, 25.

¶ 5. Finding that the trial court’s denial of Dr. Meeks’s motion for summary judgment to be in error, we reverse the judgment of the trial court and render judgment in favor of Dr. Meeks. Further, we affirm the judgment of the Court of Appeals which held that Dr. Meeks was immune to Miller’s lawsuit as an employee of UMMC, but we affirm the judgment for reasons other than those stated by the Court of Appeals.

DISCUSSION

¶ 6. On appeal, Dr. Meeks contends that the trial court improperly denied his motion for summary judgment. In reviewing a trial court’s ruling on a motion for summary judgment, this Court conducts a de novo review and “examine[s] all the evidentiary matters before us, including admissions in pleadings, answers to interrogatories, depositions, and affidavits.” Price v. Purdue Pharma Co., 920 So.2d 479, 483 (Miss.2006) (citing Aetna Cas. & Sur. Co. v. Berry, 669 So.2d 56, 70 (Miss.1996), overruled in part on other grounds, Owens v. Miss. Farm Bureau Cas. Ins. Co., 910 So.2d 1065, 1074 (Miss.2005)). “The evidence must be viewed in the light most favorable to the party against whom the motion has been made.” Price, 920 So.2d at 483 (citing Berry, 669 So.2d at 70). “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.” Howard v. City of Biloxi, 943 So.2d 751, 754 (Miss.App.2006) (citing City of Jackson v. Sutton, 797 So.2d 977, 979 (Miss.2001)).

¶ 7. “Issues of fact sufficient to require a denial of a motion for summary judgment are obviously present where one party swears to one version of the matter in issue and another party takes the opposite position.” Price, 920 So.2d at 483 (citing American Legion Ladnier Post No. 42 v. Ocean Springs, 562 So.2d 103, 106 (Miss.1990)). “If any triable issues of fact exist, the trial court’s decision to grant summary judgment will be reversed.” Price, 920 So.2d at 484. Otherwise, the decision is affirmed. Id. at 483 (citing Miller v. Meeks, 762 So.2d 302, 304 (Miss.2000)).

8. In Miller I, this Court adopted a five-factor test to determine whether a physician is an employee of the state and should be protected by sovereign immunity. Here, there is no need for this Court to analyze the five factors. In this appeal, Miller acknowledges that Dr. Meeks had an employment contract and was employed by UMMC as a professor. As such, we need only address whether Dr. Meeks acted within the scope and course of his employment at UMMC when he treated Fox. “Course of employment” is defined as “[ejvents that occur or circumstances that exist as part of one’s employment; esp., the time during which an employee furthers an employer’s goals through employer-mandated directives.” Black’s Law Dictionary 356 (7th ed.1999). “Scope of employment” is defined as “[t]he range of reasonable and foreseeable activities that an employee engages in while carrying out the employer’s business.” Id. at 1348.

¶ 9. In Children’s Med. Group, P.A. v. Phillips, 940 So.2d 931, 935 (Miss.2006), the Court stated:

Under Section 228 of the Restatement (Second) of Agency:
(1) Conduct of a servant is within the scope of employment if, but only if:
(a) it is of the kind he is employed to perform;
(b) it occurs substantially within the authorized time and space limits;
(c) it is actuated, at least in part, by a purpose to serve the master, and
(d) if force is intentionally used by the servant against another, the use of force is not unexpectable by the master.
(2) Conduct of a servant is not within the scope of employment if it is different in kind from that authorized, far beyond the authorized time or space limits, or too little actuated by a purpose to serve the master.
Restatement (Second) of Agency § 228 (1958); see also Commercial Bank v. Hearn, 923 So.2d 202, 208 (Miss.2006). If an employee “deviates or departs from his work to accomplish some purpose of his own not connected with his employment — goes on a ‘frolic of his own’ — the relation of master and servant is thereby temporarily suspended,” and the employer is not vicariously liable. Seedkem S., Inc. v. Lee, 391 So.2d 990, 995 (Miss.1980) (citations omitted). See also Mabus v. St. James Episcopal Church, 884 So.2d 747, 756 (Miss.2004) (as a matter of law, church not vicariously liable for priest’s surreptitious taping of counseling session with parishioner); Gulledge v. Shaw, 880 So.2d 288, 295 (Miss.2004) (as a matter of law, bank not vicariously liable for employee’s knowing notarization of forged signature); Adams v. Cinemark USA Inc., 831 So.2d 1156, 1159 (Miss.2002) (as a matter of law, theater not vicariously liable for assault on movie patron).

¶ 10. We do not need to remand this case to the trial court to determine whether Dr. Meeks was acting within a state-protected environment or practice when he treated Fox. The contract of employment signed by Dr. Meeks with the Board of Trustees of State Institutions of Higher Learning of the State of Mississippi allowed Dr. Meeks to see patients subject to the terms of the contract as a condition of his employment by the Board of Trustees. Nothing in the employment contract provides that Dr. Meeks must have resident physicians present at all times when patients are treated. Further, Dr. Meeks’s testimony provided that most of the time, residents are not present when patients are treated at the Pavilions, where Fox was treated by Dr. Meeks. No evidence was presented which disputes Dr. Meeks’s assertion. No statute or caselaw requires that a doctor must be “teaching” at the precise moment that treatment is provided to a patient or have residents present at all times in order to satisfy the employee status of UMMC. By his employment contract, Dr. Meeks is an employee of UMMC.

¶ 11. The employment contract makes clear that all income generated from such patients must be reported quarterly. The contract does not exclude treating private-pay or insured patients. The contract states in pertinent part:

1. In accordance with policies approved by the Board of Trustees of State Institutions of Higher Learning, the party of the second part in addition to his/her annual contracted salary will be permitted to earn additional income from medical practice subject to the following limitations:
a) The party of the second part [Dr. Meeks] shall retain 100% of earnings from medical practice up to a total income of $140,000, effective July 1,1992.
b) Income in excess of $140,000 will be divided 50% to the party of the second part [Dr. Meeks] and 50% to the University of Mississippi Medical Center (UMMC). Of the amount allocated to the Medical Center, 60% shall be for the use within the department of the party of the second part [Dr. Meeks]....
8. The party of the second part [Dr. Meeks] agrees to his/her pro rata share of expenses in the private patient association (University of Mississippi Clinical Associates). This payment shall be based upon gross medical practice earnings from all patient care related income at the Medical Center. Gross medical practice earnings shall be reported quarterly to the Business Office of the association (University of Mississippi Clinical Associates).

¶ 12. Article III of the constitution and bylaws of the University of Mississippi Clinical Associates (UMCA) states that the members of the Association “consist of all geographic full-time physicians, dentists, and other clinicians employed by the University of Mississippi Medical Center....” (Emphasis added). The bylaws further state: “[m]embership in this Association as defined in Article III, Section I, shall be a condition of employment by the Medical Center under the authority granted by the Board of Trustees, Institutions of Higher Learning and executed by the Director of the University of Mississippi Medical Center.” (Emphasis added).

¶ 13. Article II of the constitution and bylaws of the UMCA provides the following objectives of the Association:

Section 1. The Association shall maintain and supervise an outpatient clinic area or areas for the private practice of medicine.
Section 2. The Association shall strive to insure that its members have a voice in determination of policy concerning the private practice of medicine and the disposition of earnings therefrom.
Section 3. The Association shall promote excellence in quality and efficiency of patient care within the development of special services and facilities which will be a valuable resource to the community.
Section 4. The Association shall support and encourage the teaching programs of medical and paramedical personnel within the University Medical Center.

¶ 14. The fact that a resident was not present when Fox was seen as a patient and the fact that Medicare and Fox’s supplemental insurance policy paid for Dr. Meeks’s services does not alter Dr. Meeks’s contractual status. This Court has never required such a broad and overreaching requirement.

¶ 15. In Watts, 828 So.2d 785, 792-94, this Court held that the fact that UMMC administers medical practice plans which allow the doctors to see outpatients and increase their income does not cause the doctors’ status as employees to change. Key to the arrangement, UMMC maintains control over the doctors’ income through their contractual obligations to UMMC and the Board of Trustees of the State Institutions of Higher Learning. In Watts, this Court linked the need for this arrangement to generate additional income with the possibility of hiring and retaining skilled physicians to teach at UMMC. Watts, 828 So.2d at 793.

¶ 16. This Court, in Mozingo v. Scharf, 828 So.2d 1246, 1254-55 (Miss.2002), specifically held that belonging to a medical practice plan, like the UMCA, does not render a doctor an independent contractor rather than an employee of UMMC. The Court reasoned as follows:

Each department at UMMC, with the exception of the Ophthalmology Department, has established a formal medical practice plan. The trial court found that UAS [University Anesthesia Services, PLLC] was a governmental entity within the definitions of both “political subdivision” and “state.” Miss.Code Ann. § 11-46-1® & (j). “A ‘political subdivision’ means any body politic or body corporate ... responsible for governmental activities.” Id. § 11-46-1®. The Mozingos argue that UAS is not a governmental entity in that UAS does not carry out any governmental activities and that UAS’s sole function is to provide private medical services to patients at UMMC. However, providing patients with medical services is a statutorily established activity that UMMC has been mandated to provide by the Mississippi Legislature. UMMC is to provide “clinical and outpatient services and all types of services deemed to be necessary or desirable as a part of the functioning of such teaching hospital.” Miss.Code Ann. § 37-115-25 (2001). At least half of these services are required to go to indigent persons or Medicaid recipients. Id. § 37-115-27. By providing clinical patient services, UAS is carrying out state governmental activities on behalf of UMMC. Therefore, UAS falls squarely within the definition of a political subdivision.
The trial court also found that UAS fell within the definition of “state.” “State means the State of Mississippi and any office, department, agency, division, bureau, commission, board, institution, hospital, college, university, airport authority, or any other instrumentality thereof....” Miss.Code Ann. § 11-46-l(j). UAS falls within the definition of “state” because it is an instrumentality of UMMC. An instrumentality is not specifically defined in the above code section, however, the Legislature was using “instrumentality” as an inclusive term so as not to limit the means by which the state could carry out its governmental functions. While other terms in the above code section would apply to UAS (i.e., department, office, division), “instrumentality” seems to be the most appropriate term to describe UAS.
UAS was created to provide anesthesia services to patients at UMMC. As already noted, UMMC is a teaching hospital which functions to carry out the goal of the Legislature — to provide low cost or no cost health services to indigent persons or persons on Medicaid who live in the state. UAS is also staffed with UMMC faculty members who provide another important function to the State of Mississippi — to prepare future physicians to practice in the State. Furthermore, UAS is bound by UMMC guidelines. Actions with regard to physicians at UMMC are limited by the rights of the physicians as state employees at TJMMC. UMMC has numerous divisions and practice plans under its umbrella consisting of numerous organized groups of physicians with medical school faculty appointments. Twelve of these clinical departments, including the Department of Anesthesiology, formed the plan at issue here. However, these physicians cannot moonlight on other jobs in private practice, but rather are limited to providing services at UMMC. In fact, every doctor providing clinical patient services at UMMC is required by the state to belong to the practice plan. Practically every case this Court has considered regarding the subject matter of immunity under the MTCA has involved one or more physician who is both a member of a practice plan and UMMC as required. Thus, UAS was created because of a direct edict from the state agency charged with the management of UMMC. We find that UAS was simply an entity created to facilitate the billing and collection of physician fees generated by state employees. It is not a private entity. The trial couH did not err when it concluded that UAS was indeed a governmental entity and as such, the trial court is affirmed on this issue.

Mozingo, 828 So.2d at 1254-55 (emphasis added).

¶ 17. Dr. Meeks’s employment contract provides that UMMC maintained complete control over Dr. Meeks’s earnings. Further, UMMC had a financial interest in Dr. Meeks’s earnings, retaining a contractual percentage of Dr. Meeks’s earnings. The contract provides in pertinent part:

1. b) Income in excess of $140,000 will be divided 50% to the party of the second part [Dr. Meeks] and 50% to the University of Mississippi Medical Center (UMMC). Of the amount allocated to the Medical Center, 60% shall be for use within the department of the party of the second party [Dr. Meeks].
Income shall be defined as gross calendar year earnings from UMMC and the Department of Veterans Affairs Medical Center up to $140,000 plus medical practice earnings.... Such earnings shall include all patient care related income at the Medical Center, Department of Veterans Affairs Medical Center, or elsewhere....

¶ 18. Importantly, this Court has held that the fact that physicians employed by UMMC generate additional income does not alter their status as employees, and this arrangement makes it possible to hire and retain skilled doctors to serve as instructors at UMMC. Watts, 828 So.2d at 793. While lengthy, it is beneficial to examine what the Court held:

Given the sufficient information in the record before this Court concerning details of the UMMC departmental practice plans in general, and the UAS plan specifically, from which to determine that receiving income from a UMMC medical practice plan does not make a physician an independent contractor, we today so hold.
It should be remembered that the MTCA is a legislative, not judicial creation. “The function of creating a public policy is primarily one to be exercised by the Legislature and not by the courts.” Miss. Baptist Hosp. v. Holmes, 214 Miss. 906, 931, 55 So.2d 142, 152 (1951). Moreover, because the Legislature “controls the purse,” it is the Legislature that must determine the salaries of the faculty of our state medical school. The Legislature created the state teaching hospital in order to train physicians for this state. The statute mandates that UMMC shall establish “clinical and out patient services and all types of services deemed to be necessary or desirable as a part of the functioning of such a teaching hospital.” Miss.Code Ann. § 37-115-25 (2001). UMMC is mandated to take all patients, whether they are able to pay or not. The Board of Trustees, which has authority over this state’s teaching hospital, has mandated an employment plan for its faculty which includes a base salary, supplemented by money received at the teaching hospital for clinical and outpatient services. This supplemental income is administered by UMMC’s medical practice plans.
Under the contract Dr. Tsang signed with the State of Mississippi, he must belong to one of these medical practice plans created and administered by the State, and can work only at UMMC. Further, only faculty at UMMC can belong to these medical practice plans.
* * Sc
Watts’s characterization of UAS as a private corporation solely for the benefit of the physicians, so that they can hide behind State immunity in their private practice, is disingenuous. The State created UAS, not primarily for the benefit of the faculty-physicians, but instead, for its own benefit. The State has a compelling interest in training doctors in this state and earing for indigent patients. The State wants to attract the best instructors for its teaching hospital. Without subsidizing the income of its faculty through these medical practice plans, it can not do so. When the faculty-physician is hired, the compensation arrangement is explained. He or she i-eceives a base salary provided from the State coffers, which is then supplemented by patient care revenues collected at the teaching hospital. The faculty-physicians did not devise this ci-eative salary system, and they have no choice whether or not they want to participate in it. Watts’s argument that they have a choice not to participate in one of plans is specious at best. It would be similar to arguing that any employee has a choice whether or not to accept part of, instead of all of his or her salary. Without the money channeled through UAS, Dr. Tsang would not be receiving the full salary and benefits he bargained for as a State employee.
We find-as a matter of law that Dr. Tsang cannot lose his status as a State employee, and the immunity that status affords, merely by receiving a portion of his compensation through UAS. UAS is nothing more than the State’s vehicle for providing and billing for patient care at its state hospital and supplementing the income of its faculty-physicians. If Dr. Tsang lost his faculty appointment, he would automatically lose his hospital privileges, and his employment with UAS would automatically terminate.
That said, we are not holding that all medical practice groups are per se in-strumentalities of the State. However, where as here the medical practice group was created by UMMC, and is overseen by UMMC, and the purpose is to supplement the income of its faculty; when the day-to-day oversight is left to the department chair, subject to limited oversight by the vice chancellor, and its membership is composed solely of full-time UMMC faculty-physicians; where the faculty-physicians can only practice at UMMC approved sites, and the money is distributed on a point system based on factors other than mere patient service, we must conclude that the medical practice group is a State entity.
We are also not holding that receiving compensation from a medical practice plan makes one an employee of the State. Physicians who engage in private practice, separate from UMMC, cannot acquire State immunity for their private practice by merely doing work at UMMC or receiving payment from one of its medical practice plans.

Watts, 828 So.2d at 792-94.

¶ 19. Further, this Court in Mozingo, 828 So.2d at 1254-55, held that the physician’s participation in a practice plan does not render the physician an independent contractor where the physician was required by the State to belong to the practice plan. Here, the bylaws of the UMCA which apply to Dr. Meeks state that “[m]embership in this Association ... shall be a condition of employment by the Medi-' cal Center under the authority granted by the Board of Trustees, Institutions of Higher Learning and executed by the Director of the University of Mississippi Medical Center.” The UMMC shared in the net proceeds of the practice by contractually creating a financial interest in the practice and Dr. Meeks’s earnings.

¶ 20. Dr. Meeks was contractually required as stated above to periodically report his earnings and expenses to the Assistant Vice Chancellor of Business Affairs of the Medical Center. The report specifically was required to contain a detailed listing of Dr. Meeks’s income and deductions as well as annuities and deferred compensation plans. The contract provided that Dr. Meeks was subject to audit by the Vice Chancellor for Health Affairs. As such, UMMC exercised considerable control over Dr. Meeks’s total income.

¶21. In an affidavit from Dr. William C. Nicholas, Director of the Division of Internal Medicine, he stated that he determined how payments were allotted from the Division of General Internal Medicine’s practice plans. Dr. Nicholas stated that the Division of General Internal Medicine practice plan was subject to the supervision of the Department of Medicine Chair and further oversight from the Vice Chancellor.

¶22. Based on the findings discussed above, we hold that Dr. Meeks was acting in the course and scope of his employment at UMMC when he treated Fox. Accordingly, the trial court erred by denying Dr. Meeks’s motion for summary judgment.

CONCLUSION

¶23. We affirm the judgment of the Court of Appeals which reversed the judgment of the Circuit Court of the First Judicial District of Hinds County, Mississippi, and rendered judgment in favor of Dr. Meeks for the reasons stated herein. We reverse the judgment of the First Judicial District of the Circuit Court of Hinds County and render judgment by this Court in favor of Dr. Meeks.

¶ 24. THE JUDGMENT OF THE COURT OF APPEALS IS AFFIRMED. THE JUDGMENT OF THE CIRCUIT COURT OF THE FIRST JUDICIAL DISTRICT OF HINDS COUNTY, MISSISSIPPI, IS REVERSED AND JUDGMENT RENDERED.

SMITH, C.J., CARLSON, DICKINSON AND RANDOLPH, JJ., CONCUR. DIAZ, P.J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY WALLER, P.J. GRAVES AND LAMAR, JJ., NOT PARTICIPATING.

DIAZ, Presiding Justice,

Dissenting:

¶ 25. Because the majority abandons the test set out in Miller I and finds that Dr. Meeks cannot be an independent contractor under any set of circumstances, I must respectfully dissent.

I. Miller I Should not be Abandoned.

¶ 26. While it is true that Dr. Meeks was employed by UMMC as a professor, “[o]ur law recognizes that a person may be an independent contractor as to certain work and a mere agent as to other work for the same employer.” Kight v. Sheppard Bldg. Supply, Inc., 537 So.2d 1355, 1359 (Miss.1989) (citing Carroll v. E.G. Laughlin & Sons, 220 Miss. 535, 71 So.2d 461 (1954); Mills v. Jones, 213 Miss. 680, 56 So.2d 488 (1952)). Thus, the question presented to the Court is whether Dr. Meeks was acting as an independent contractor at the time of the alleged negligence.

¶ 27. The majority, however, holds that we should no longer look to whether Dr. Meeks was acting as an independent contractor, but whether he was “acting within the scope and course of his employment.” This presupposes that Dr. Meeks was acting as an employee, answering the very question that is before this Court and placing “the cart before the horse.” Before we can determine whether Dr. Meeks was acting within the scope and course of his employment, we must first determine whether an employer-employee relationship existed in the first place.

¶ 28. By removing the independent contractor exception, the majority violates well established rules of tort law and clear legislative intent. This Court has held, “[i]t is well settled that one who contracts with an independent contractor to perform certain work or service which is not illegal, dangerous or harmful, is not liable for torts committed by him.” Hester v. Bandy, 627 So.2d 833, 841 (Miss.1993) (citing Blackmon v. Payne, 510 So.2d 483 (Miss.1987); Mississippi Power Co. v. Brooks, 309 So.2d 863 (Miss.1975)). This rule that a principle is generally not liable for the actions of an independent contractor is reflected in the governing statute.

“Employee” means any officer, employee or servant of the State of Mississippi or a political subdivision of the state, included elected or appointed officials and persons acting on behalf of the state or a political subdivision in any official capacity, temporarily or permanently, in the service of the state or a political subdivision whether with or without compensation. The term “employee” shall not mean a person or other legal entity while acting in the capacity of an independent contractor under contract of the state or a political subdivision

Miss Code Ann § ll-46-l(f) (Supp.1999) (emphasis supplied). See also Miss. Att’y Gen. Op. No. 96-0137 (March 8, 1996) (“The definition, in Section 11^46-l(f), does exclude from the protection of the Act those persons ‘acting on behalf of the state’ who are ‘independent contractors.’ ”). The opinion never mentions this statute.

II. Dr. Meeks was Acting as an Independent Contractor.

¶ 29. In Miller I, Justice Mills articulated for the Court five factors to be used in determining whether Dr. Meeks was acting an independent contractor: (1) the nature of the function performed by the physician; (2) the extent of the state’s interest and involvement in the function; (3) the degree of control and direction exercised by the state over the physician; (4) whether the act complained of involved the use of judgment and discretion; and whether the physician receives compensation, either directly or indirectly, from the patient for professional services rendered. 762 So.2d at 310. Presiding Justices Pittman and Banks and Justices Smith, Waller, Cobb and myself concurred. Id. Justice McRae concurred in part and dissented in part and Chief Justice Prather did not participate in the opinion. Id.

¶ 30. At the time of the alleged negligence, Dr. Meeks was a professor at UMMC, but was allowed to earn additional income as a member of the University of Mississippi Clinical Associates (UMCA). The UMCA is separate from UMMC and its membership is limited to physicians, dentists and clinicians employed by UMMC. According to the by-laws, “The Association shall have final authority over all policies and procedures, subject to limitations imposed by the administration of the University Medical Center, University of Mississippi, and Board of Trustees, Institutions of Higher learning.” (Article X Section 1). Additionally, the UMCA bylaws consistently refer to the administration of “private outpatient” clinics.

¶ 31. Under his employment contract, Dr. Meeks earned a base salary of $77,279 with the right to earn 100% of additional income up to $140,000, and 50% of any additional fees thereafter. This additional money was earned at the “UMMC Pavilion,” an outpatient clinic located on the campus, referred to as a “private clinic” on its appointment card. Dr. Meeks was required to submit a “Private Practice Income Report” once a year to UMMC. In 1993 and 1994, Dr. Meeks paid a “self-employment tax” on this partnership income. His base salary from UMMC was reported as “wages, tips, salaries etc.”

¶ 32. In our previous opinion, we stated that “UMMC generated the bills and collected the payment for professional services rendered by Dr. Meeks during his time with the Association.” Miller I, 762 So.2d at 306. In support of this finding, we relied on the by-laws of the UMCA. However, UMMC’s name does not appear on Fox’s medical bills. Rather, the name on the bills is the Division of Internal Medicine, which at the time of the alleged malpractice was a partnership between Dr. Meeks and another doctor. The partnership agreement specifically states, “the Partners desire to form a partnership for the purposes of providing (1) medical services to patients in the private practice of internal medicine at the University Hospital, and (2) a billing and collection service for the Partnership and others.” (Emphasis supplied). While Dr. Meeks asserted in his deposition that the Division of Internal Medicine was a division of UMMC, the plain language of the agreement reveals an intent to form a partnership solely for providing private services.

¶ 33. The Court of Appeals found that all five Miller factors weighed in favor of Dr. Meeks’s status as an employee of UMMC. Meeks v. Miller, 956 So.2d 951, 2006 WL 1737757, 2006 Miss.App. LEXIS 500 (Miss.Ct.App.2006). For the following reasons, I find that the Court of Appeals erred and that Dr. Meeks was acting as an independent contractor.

(1) The Nature of the Function Performed by the Employee.

¶ 34. In analyzing the nature of the employee’s function in previous cases, we have found three factors helpful: (1) whether the doctor was acting in a teaching capacity at the time of treatment; (2) whether the doctor had a private relationship with the patient; and (3) whether the doctor was providing care to an indigent patient. See Sullivan, 768 So.2d at 884-85; Clayton, 826 So.2d at 1285; Watts, 828 So.2d at 798; Mozingo, 828 So.2d at 1252; Corey, 834 So.2d at 685; Johnson, 943 So.2d at 687. If the doctor is teaching, without a private physician-patient relationship, and treating an indigent patient, these facts weigh in favor of the doctor’s status as an employee.

¶ 35. In this case, it is undisputed that neither residents nor medical students were present during Fox’s visits. Additionally, Fox sought out Dr. Meeks after he was referred by a neighbor. Because Fox was not assigned to Dr. Meeks, there was a private physician-patient relationship. Finally, Fox’s daughter stated that his medical bills were paid by a combination of Medicare and other private supplemental heath insurance. Therefore, Fox was a “private-pay” patient, and Dr. Meeks’s deposition testimony supports a finding that Fox was not an indigent patient:

Dr. Meeks: Actually, the patients have to have some sort of insurance to be seen [at the Pavilion] is my understanding. So, you know, in that sense they recommend if patients don’t have insurance that they go to the Medical Mall to be seen.
Q: So, there again, if they require them to have insurance to be seen by you, that means that they will be charged and be — be paying for your services and not be provided free services such as provided by UMC. Correct?
Dr. Meeks: That’s correct.

¶ 36. The Court of Appeals dismissed these factors and found that the nature of the function performed weighed in favor of finding that Dr. Meeks was an employee. Meeks, 956 So.2d at 951, 2006 Miss.App. LEXIS 500 at ¶ 19. This finding is out of step with our previous cases, and this factor weighs in favor of the trial court’s finding that Dr. Meeks was an independent contractor. See Johnson, 943 So.2d at 687; Sullivan, 768 So.2d at 884-85; Clayton, 826 So.2d at 1285; Watts, 828 So.2d at 798; Mozingo, 828 So.2d at 1252; Corey, 834 So.2d at 685.

(2) The Extent of the State’s Interest and Involvement in the Function.

¶ 37. When examining this factor, we again look to whether the doctor was teaching or supervising medical students or residents and whether the doctor was treating an indigent patient. We have consistently held that “[t]he State has a strong interest in maintaining a practical and educational environment for residents and supervising physicians in its state hos-pitáis, meeting the needs of both the physicians and the patients.” Johnson, 943 So.2d at 687 (citing Sullivan, 768 So.2d at 885). Additionally, “UMMC is fulfilling its operational purpose under Miss.Code Ann. § 37-115-31 (1996) by providing care to [patients] regardless of [their] ability to pay.” Id. See also Clayton, 826 So.2d at 1285-86; Mozingo, 828 So.2d at 1252; Corey, 834 So.2d at 685.

¶ 38. The Court of Appeals found that because the State has an interest in hiring and retaining highly skilled physicians, this second factor weighed in favor of determining that Dr. Meeks was an employee. Meeks, 956 So.2d at 948-49, 2006 Miss.App. LEXIS 500 at ¶ 22-23. However, this again ignores our precedent. In the present case, Dr. Meeks was neither teaching nor supervising any residents, and Fox was not an indigent patient. We have previously held “[t]he State does not have any interest in one of its faculty members treating a ‘private patient.’ ” Bennett, 821 So.2d at 800. Therefore, this factor weighs in favor of finding that Dr. Meeks was acting as an independent contractor.

(3) The Degree of Control and Direction Exercised by the State Over the Physician.

¶ 39. The Court of Appeals found that “[w]hile being contractually required to maintain membership with the UMCA, Dr. Meeks was prohibited from practicing medicine outside his employment at UMMC. Further, he could only admit patients to UMMC and no other hospital.” Meeks, 956 So.2d at 949, 2006 Miss.App. LEXIS 500 at ¶ 25. However, his UMMC employment contract does not contain these restrictions. The contract simply states that he must report additional income from “all patient care related income at the Medical Center, Department of Veterans Affairs Medical Center, or elsewhere.” (Emphasis supplied). It was his partnership agreement, the Division of Internal Medicine, and not UMMC or UMCA, that restricted his practice to UMMC. As discussed above, the record is unclear whether the Division of Internal Medicine was a division of UMMC or a “private” partnership as stated in its partnership agreement.

¶ 40. In our previous opinion, we found that “UMMC exercises considerable control over the treatment of patients at the clinic.” Miller I, 762 So.2d at 306. However, the record shows only that the clinics were subject to UMMC regulations, despite Dr. Meeks’s claims that UMMC controlled the entire relationship. While being subject to regulations is evidence of some control, this does not support our previous conclusion that “UMMC exerciser] considerable control.” Id. (Emphasis supplied).

¶ 41. On the other hand, plaintiffs allege that at all times Dr. Meeks held himself out to be a private practitioner. UMMC did not assign Fox to Dr. Meeks, and at no time was Dr. Meeks teaching or supervising residents or medical students. Indeed, his employment contract, the UMCA bylaws, and the Division of Internal Medicine partnership agreement all refer to the clinic as “private practice.”

¶ 42. The majority asserts that Dr. Meeks was part of a “medical practice plan” and relies on our opinion in Mozingo. Mozingo held that where the defendant was part of a “medical practice plan,” he was considered a member of a “political subdivision” for purposes of Miss.Code Ann. § 11-46-1(1) (Rev.2002). 828 So.2d at 1254-55. However, at the time in question, there were no such well-defined “practice plans” such as the UAS. Unlike the UAS, Dr. Meeks was in a private partnership. Id. at 1255. Accordingly, this factor weighs in favor of the trial court’s finding that Dr. Meeks was acting as an independent contractor.

(4) Whether the Act Complained of Involved the Use of Judgment and Discretion.

¶43. This fourth factor is practically the same in every case. In Sullivan we noted that “[w]hile this is a consideration, it is not determinative. Virtually every act performed by a person involves the exercise of some discretion.... This is especially true of physicians who are bound to exercise their judgment without interference from others.” 768 So.2d at 885; see also Johnson, 943 So.2d at 688. Accordingly, I would eliminate this factor as it has not proved to be helpful when determining physician employment status.

(5) Whether the Physician Receives Compensation, Either Directly or Indirectly, from the Patient for Professional Services Rendered.

¶44. This final factor often turns on whether the patient was indigent, whether UMMC directly billed the patient, or whether the doctor was placed on a set salary. Sullivan, 768 So.2d at 885-86; Mozingo, 828 So.2d at 1253; Smith, 765 So.2d at 550; Corey, 834 So.2d at 685. As previously discussed, Fox had private insurance. He was billed by the Division of Internal Medicine, Dr. Meeks’s private partnership. Finally, the money received from his practice at the clinic was money he earned above his base salary. Thus, the final factor weighs in favor of finding Dr. Meeks an independent contractor.

Conclusion

¶ 45. For the foregoing reasons, I would reverse the Court of Appeals decision and reinstate the circuit court’s denial of summary judgment.

WALLER, P.J., JOINS THIS OPINION.

      . This Court’s previous opinion stated that Fox was treated by Dr. Meeks in 1994. See

        Miller v. Meeks, 762 So.2d 302, 303 (Miss.2000). However, according to the second amended complaint contained in the record, Fox was first examined by Dr. Meeks on September 22, 1993, with further visits in November and December 1993.

      . In Miss.Code Ann. § 37-115-25 (Rev.2001), the Mississippi Legislature provided for the operation of UMMC, stating:
      There shall be built, equipped and operated as a part of the medical school, a teaching hospital of the size of not less than three hundred fifty bed capacity, together with all ancillary buildings and physical facilities needful or proper for the establishment, operation and maintenance of such a hospital as a part of a fully accredited four-year medical school, including clinical and out patient services and all types of services deemed to be necessary or desirable as a part of the functioning of such a teaching hospital. Said teaching hospital shall be known as the University Hospital. There shall also be acquired and installed all needed equipment and supplies for the proper operation and maintenance of such medical school and hospital and other facilities for the purposes aforesaid. There shall be employed all needed personnel and services to operate said medical school and hospital and other facilities.

      . The Legislature has amended this section in 2002 to include "any physician, dentist or other health care practitioner employed by the University of Mississippi Medical Center (UMMC) and its departmental practice plans who is a faculty member and provides health care services only for patients at UMMC or its affiliated practice sites.” Miss.Code Ann. § ll-46-l(f) (Rev.2002). Any actions brought after 2002 will be governed by the amendment, and doctors practicing at the Pavilion will be considered employees. Therefore, it makes little sense to abandon a well-accepted test at this point in time.

      . Since Miller I, this Court has examined this five-part test in eleven cases. Johnson v. Chatelain, 943 So.2d 684 (Miss.2006); Davis v. Hoss, 869 So.2d 397 (Miss.2004); Corey v. Skelton, 834 So.2d 681 (Miss.2003); Mozingo v. Scharf, 828 So.2d 1246 (Miss.2002); Watts v. Tsang, 828 So.2d 785 (Miss.2002); Clayton v. Harkey, 826 So.2d 1283 (Miss.2002); Bennett v. Madakasira, 821 So.2d 794 (Miss.2002); Conley v. Warren, 797 So.2d 881 (Miss.2001); Carter v. Harkey, 774 So.2d 392 (Miss.2000); Smith v. Braden, 765 So.2d 546 (Miss.2000); Sullivan v. Washington, 768 So,2d 881 (Miss.2000). In five cases, this Court found that the physician was acting as an employee of UMMC and therefore was afforded the protections of the MTCA. Corey, 834 So.2d 681 (affirming summary judgment in favor of physician); Mozingo, 828 So.2d 1246 (same); Watts, 828 So.2d 785 (same); Clayton, 826 So.2d 1283 (same); Sullivan, 768 So.2d 881 (reversing denial of summary judgment). In the remaining six cases, we reversed summary judgments which held that the physician was acting as an employee of UMMC and remanded these cases for a determination of the factual issues. Johnson, 943 So.2d 684; Davis, 869 So.2d 397; Bennett, 821 So.2d 794; Conley, 797 So.2d 881; Carter, 774 So.2d 392; Smith, 765 So.2d 546.


source: Caselaw Access Project

author: DICKINSON, Justice, DIAZ, Presiding Justice,

license: Public Domain

text:
    Julianna LAMAR v. THOMAS FOWLER TRUCKING, INC.
    No. 2004-CT-00280-SCT.
    Supreme Court of Mississippi.
    May 24, 2007.

      John Griffin Jones, Gilson Davis Peterson, T. Stewart Lee, Jr., Craig Robert Sessums, Jackson, attorneys for appellant.
    Matthew Anderson Taylor, Paul T. Lee, Jr., attorneys for appellee.
   ON WRIT OF CERTIORARI.

DICKINSON, Justice,

for the Court.

¶ 1. A subcontractor’s employee was killed while hauling logs. The subcontractor claims it is entitled to the “exclusive remedy” immunity provided by Mississippi’s workers’ compensation statutes, Miss. Code Ann. § 71-3-1 et seq. (Rev.2000) (the “Act”), because the general contractor deducted workers’ compensation premiums from payments due the subcontractor and because one of the deceased employee’s daughters elected to accept workers’ compensation benefits from the Mississippi Loggers Self-Insured Fund. The deceased employee’s other daughter, the Appellant, received no workers compensation benefits, and filed a wrongful death suit. The question presented is whether the workers’ compensation statutes provide the subcontractor immunity from the wrongful death suit.

BACKGROUND FACTS AND PROCEEDINGS

¶ 2. The opinion rendered in this case by the Court of Appeals includes an excellent recitation of the facts. Lamar v. Fowler Trucking, 956 So.2d 911, 2006 WL 858294, 2006 Miss.App. LEXIS 249, 2004-CA-00280-COA (Miss.Ct.App.2006). We provide the following abbreviated version.

¶ 3. Ira Bobo (“Bobo”) was killed while working for Fowler Trucking, which was transporting logs for Golden Timber, Inc. Bobo’s youngest daughter, Tracie, was considered a dependent as defined by section 71-3-25 of the Act, and was voluntarily paid death benefits by Golden Timber’s workers’ compensation carrier. Bobo’s oldest daughter, Julianna Lamar (“Lamar”) however, was not a dependent as defined by the Act, and was paid nothing. Lamar filed a wrongful death suit against Fowler Trucking, Golden Timber and two of Golden Timber’s employees. Golden Timber and its employees were dismissed by agreed order, because Golden Timber was Bobo’s statutory employer and, therefore, was afforded immunity under the Act. Fowler Trucking moved for summary judgment, arguing that it also was protected by the exclusivity provision of the Act because it procured workers’ compensation insurance through Golden Timber.

A. Trial Court Proceeding

¶ 4. At the hearing on the motions for summary judgment, Fowler Trucking asserted that it paid premiums to Golden Timber in order to be included under Golden Timber’s workers’ compensation policy. Golden Timber’s bookkeeper testified in her deposition that money was withheld from payments due to Fowler Trucking to cover the cost of the workers’ compensation policy.

¶ 5. Relying on Bevis v. Linkous Constr. Co., 856 So.2d 535 (Miss.Ct.App.2003), the trial court held the Fowler Trucking was not obligated to secure workers’ compensation coverage for Bobo because Golden Timber paid compensation to Bobo’s heirs. In Bevis, the Court of Appeals stated that “so long as coverage is provided by either the subcontractor or the contractor, recovery under workers’ compensation is the injured worker’s sole remedy.” 856 So.2d at 541 (emphasis added). The trial court, finding that the statutes provided for an election of remedies in this case, granted summary judgment in favor of Fowler Trucking, because Bobo’s “beneficiaries” received death benefits. The trial court held that this precluded Lamar from asserting an independent tort action against Fowler Trucking.

B. Court of Appeals Proceeding

¶ 6. The Court of Appeals affirmed the trial court’s grant of summary judgment in favor of Fowler Trucking. The Court of Appeals, however, found that the trial court should not have relied on Bevis “to find that the ‘up-the-line’ immunity in that case applied equally to a subcontractor in a ‘down-the-line’ situation.” Lamar, 956 So.2d at 921, 2006 Miss.App. LEXIS 249 at *24 (Miss.Ct.App.2006). The Court of Appeals stated, “[w]e do not find that Bevis can automatically be applied to the ‘down-the-line’ situation.” Id.

¶ 7. The Court of Appeals found that Fowler Trucking had failed to secure workers’ compensation coverage and was not protected “down-the-line” by Golden Timber’s policy. However, the Court of Appeals held that because Lamar’s younger sister elected to accept the death benefits under the Act, Lamar’s sole remedy was under the Act and not through an independent tort action. Lamar filed a Petition for Writ of Certiorari, which we granted.

DISCUSSION

I.

¶ 8. We apply “a de novo standard of review to the trial court’s grant of summary judgment.” Moss v. Batesville Casket Co., 935 So.2d 393, 398 (Miss.2006). Our rules of civil procedure require the trial court to grant summary judgment where “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.” Miss. R. Civ. P. 56(c).

¶ 9. The movant bears the burden of demonstrating that no genuine issues of material fact exist for presentation to the trier of fact, and the non-moving party must be given the benefit of every reasonable doubt. Moss, 935 So.2d at 398. “ ‘Issues of fact ... are present where one party swears to one version of the matter in issue and another says the opposite.’ ” Id. (quoting Tucker v. Hinds County, 558 So.2d 869, 872 (Miss.1990)). Additionally, we apply the plain meaning of the statutes to the issues before this Court. See Walker v. Whitfield Nursing Ctr., Inc., 931 So.2d 583, 590 (Miss.2006).

II.

¶ 10. While we agree with both the trial court and the Court of Appeals that Lamar is precluded from suing in tort for the wrongful death of her father, our reason for this conclusion is materially different from those of both the trial court and the Court of Appeals. As stated previously, the trial court found that Fowler Trucking failed to secure workers’ compensation coverage, but was nevertheless immune from suit because Golden Timber had secured coverage. The trial court further found that Fowler Trucking was immune from suit because Bobo’s beneficiaries elected the remedy of workers’ compensation. While reaching the same result, the Court of Appeals reasoned differently. The Court of Appeals found that Fowler was non-compliant with the Act and, therefore, the Act did not provide it immunity. However, the Court of Appeals agreed that Lamar was precluded from suing in tort because Bobo’s beneficiaries had elected their remedy under the Act by receiving workers’ compensation payments from Golden Timber. For different reasons, we affirm the trial court’s grant of summary judgment and the judgment of the Court of Appeals.

¶ 11. The Court of Appeals correctly stated that “[t]he ultimate issue is whether Lamar is statutorily prevented from pursuing a common law wrongful death action against Fowler.” Lamar v. Fowler Trucking, 956 So.2d at 915, 2004-CA-00280 at *9. An employee is statutorily prevented from pursuing a common law wrongful death action in one of two ways. First, if it provides workers’ compensation coverage to its employees by “securing payment of compensation,” in compliance with section 71-3-7, then its employees are precluded from suing in tort pursuant to section 71-3-9, which provides that workers’ compensation payments are the exclusive remedy when the employer secures payment of compensation. Miss.Code Ann. §§ 71-3-7, 71-3-9 (Rev.2000).

¶ 12. Second, even if an employer fails to secure payment of compensation, in certain circumstances, an employee may “elect” to proceed under the provisions of the Act in lieu of maintaining an action at law for damages. See Miss.Code Ann. § 71-3-9. Once an “election of remedies” is made, then the party electing to proceed under the provisions of the Workers’ Compensation Act is precluded from suing in tort. In the case before us, we find that Fowler Trucking complied with section 71-3-7 by “securing payment of compensation,” and therefore, we need not address the issue of election of remedies.

III.

¶ 13. While both the trial court and the Court of Appeals focused on the contractor/subcontractor relationship between Golden Timber and Lamar Trucking, analyzing “up-the-line” and “down-the-line” immunity concepts, we find that analysis to be unnecessary, as the issue of whether Fowler Trucking is immune from suit turns on statutory language, that is, whether Fowler complied with section 71-3-7 by “securing] the payment to [its] employees.... ”

¶ 14. Fowler Trucking argues that when workers’ compensation coverage is provided either by the subcontractor or the contractor, recovery under workers’ compensation is the injured worker’s sole remedy. This concept, occasionally labeled “down-the-line” immunity, is applicable where it can be justified by statutory language. We find that Fowler Trucking’s compliance with the Act provides it the protection of the “exclusive remedy” provision. We further find labeling the protection as “down-the-line” immunity is confusing and unnecessary.

¶ 15. Pursuant to section 71-3-5, Fowler Trucking qualified as an “employer” because it had “five (5) or more workmen or operatives ... under any contract of hire.” Therefore, as an employer, Fowler Trucking had an obligation to secure compensation for its employees pursuant to section 71-3-7(d), which states in pertinent part:

Every employer to whom this chapter applies shall be liable for and shall secure the payment to his employees of the compensation payable under its provisions.
In the case of an employer who is a subcontractor,[] the contractor shall be liable for and shall secure the payment of such compensation to employees of the subcontractor, unless the subcontractor has secured such payment.

Miss.Code Ann. § 71 — 3—7—(d) (Rev.2000) (emphasis added). Thus, if Fowler Trucking “secured such payment,” that is, if it took proper steps to provide for the payment of workers’ compensation benefits, then it is immune from suit in tort pursuant to section 71-3-9, which states that,

The liability of an employer to pay compensation shall be exclusive and in place of all other liability of such employer to the employee ... 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 fi’om 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.

Miss.Code Ann. § 71-3-9 (Rev.2000). The Court of Appeals correctly noted that “[b]y the language of the Act, immunity is available only to those employers who operate in compliance with the Act.” Lamar, 956 So.2d at 919, 2006 Miss.App. LEXIS 249 at *18. The Court of Appeals went on to state that “the exclusivity framework has been extended by the Mississippi Supreme Court to include those employers who may be considered ‘statutory employers’ under section 71-3-7. This is the principal of ‘up-the-line’ immunity, and it has become well-established in Mississippi law.” Lamar, 956 So.2d at 919, 2006 Miss.App. LEXIS 249 at *19; see Mosley v. Bowers, 224 Miss. 725, 80 So.2d 819, 821 (1955) (this Court extended workers’ compensation immunity to a general contractor who was considered a statutory employer of its subcontractor’s employees); Doubleday v. Boyd Constr. Co., 418 So.2d 823, 826 (Miss.1982) (finding that section 71-3-7 does not subject a general contractor to common law liability if he required the subcontractor to have workers’ compensation insur-anee); Richmond v. Benchmark Constr., Corp., 692 So.2d 60, 63 (Miss.1997) (finding that an oral agreement between a general contractor and subcontractor that the subcontractor would provide workmen’s compensation insurance was sufficient to extend workers’ compensation immunity to a general contractor).

¶ 16. We wish to point out that the immunity enjoyed by general contractors is not a gift from this Court, nor is it an extra-statutory concept, but rather is granted by the Legislature under certain statutorily-defined circumstances. For instance, this Court in Doubleday found that the general contractor, Boyd, enjoyed the statutory immunity by “contractually requiring [its subcontractor] to secure a policy of insurance on its employees.” 418 So.2d at 827. The Doubleday Court went on to state that the general contractor “ ‘secured’ compensation insurance for the benefit of Doubleday within the meaning and purpose of the statute.” Id.

¶ 17. The critical question in today’s case is whether Fowler complied with the Act by “securing the payment to his employees of the compensation payable under its provisions.” Miss.Code Ann. § 71-3-7(d) (Rev.2000). If so, Fowler Trucking is covered by the exclusiveness of liability of section 71-3-9.

IV.

¶ 18. In determining whether Fowler complied with Miss.Code Ann. Section 71-3 — 7(d), we turn to facts in the record before us, finding that Fowler did secure compensation as required by the Act. The record indicates that Fowler Trucking hauled logs exclusively for Golden Timber. Golden Timber obtained workers’ compensation insurance through the Mississippi Loggers Association Self-Insured Fund. Deposition testimony of Carla Corbitt, the Rule 30(b)(6) representative of Golden Timber, indicated that Golden Timber deducted payments for workers’ compensation insurance for Fowler Trucking’s employees from Fowler Trucking’s gross pay. Additionally, Corbitt’s testimony indicated, supported by various statements in the record from the Mississippi Loggers Association Self-Insured Fund, that payment for “contract trucking” coverage was calculated at a rate of $7 per day per truck. Corbitt stated that “the insurance was held out from Fowler Trucking each week. The premium was $7 per day per truck, which was deducted from the gross wages at the end of the week.” When asked who figured the premium, Corbitt answered, “[m]ost of the time, I did.” Corbitt stated that instead of calculating the premium by employee names, Golden Timber calculated the premiums by listing the truck that the Fowler Trucking employee was driving.

¶ 19. Thomas Fowler, president of Fowler Trucking, also testified during his deposition that workers’ compensation premiums were paid by Fowler Trucking for company employees through deductions at a rate of $7 per truck per day. In addition, Fowler testified that to his understanding, workers’ compensation premiums were always deducted from the gross proceeds received from Golden Timber. Furthermore, the record contains a Certificate of Liability Insurance which names Golden Timber as the insured and Fowler as an additional insured. Finally, following the death of Bobo, reports of injury (MWCC Form B-3) were filed on behalf of Bobo with the Mississippi Workers’ Compensation Commission and, as a result, the Mississippi Loggers Association Self-Insured Fund paid dependant benefits totaling $6,725.60 to Bobo’s youngest daughter, Tracie, until she reached the age of 23.

¶ 20. We find, therefore, that sufficient evidence exists in the record to show that Fowler Trucking complied with the Act by “securing coverage” for Bobo, its employee. Because we find that Fowler Trucking did so, we need not address whether Bobo’s beneficiaries are precluded from suing in tort because they elected to receive compensation benefits.

CONCLUSION

¶ 21. We find that Fowler Trucking complied with the plain language of the Act by “securing compensation,” for its employees and, as a result, Lamar is precluded from pursuing an action in tort against Fowler Tracking. Therefore, the trial court did not err in granting summary judgment in favor of Fowler Trucking. Furthermore, the judgment of the Court of Appeals is affirmed.

¶ 22. AFFIRMED.

SMITH, C.J., WALLER, P.J., EASLEY, CARLSON AND RANDOLPH, JJ., CONCUR. DIAZ, P.J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY GRAVES, J. LAMAR, J., NOT PARTICIPATING.

DIAZ, Presiding Justice,

Dissenting:

¶ 23. Under the reasoning of the majority, no subcontractor in Mississippi ever has to secure workers’ compensation insur-anee. Because no such exemption is present in the Workers’ Compensation Act, and because the majority today drafts a dramatic new expansion into the law, I must respectfully dissent.

I. The Three Methods of Complying with the Act.

¶ 24. Any review of a case under the Act must necessarily start with the wording of the statutes, which we then apply to the facts of the case. The majority correctly concludes that Fowler Trucking is covered under Section 71-3-5, which mandates that all employers with five or more employees must have workers’ compensation insurance. Yet the opinion wavers on the concept from that point onwards, crafting a “good enough” standard that is not present in the statutes. Partly to blame is our unnecessarily complicated case law that has judicially rewritten the Act.

¶ 25. The Legislature saw fit to explain exactly what constitutes “securing coverage” for the purposes of the Act in Section 71-3-75 of the Code. As the Court of Appeals explained, this code section “provides three mechanisms for security of payment: (1) by a carrier authorized to insure such liability in this state; (2) by exemption from insuring pursuant to authority from the commission; (3) and by self-insuring or pooling liabilities with other employers engaged in a common type of business under rules and regulations prescribed by the commission.” Lamar v. Thomas Fowler Trucking, Inc., 956 So.2d 911, 918, 2006 Miss.App. LEXIS 249, *17 n. 4 (Miss.Ct.App.2006); see Taylor v. Crosby Forest Products Co., 198 So.2d 809, 811 (Miss.1967) (“The requirement that the employer must secure payment of compensation means that he must have in effect an insurance policy complying with the workmen’s compensation act, or must qualify as a self insurer.”) (internal citation and quotation omitted). There are, then, three ways one complies with the Act: by getting a compliant insurance policy, by obtaining exemption, or by self-insuring.

¶ 26. Fowler Trucking admitted it did not secure coverage through the first two means; instead, it argues that it indirectly secured coverage through the corporation it contracted for, Golden Timber, effectively “self-insuring.” As the Court of Appeals stated it, “Fowler Trucking argues that ... the subcontractor is entitled to immunity from suit because it was actually paying the general contractor for the workers’ compensation coverage of its employees.” Lamar, 956 So.2d at 916, 2006 Miss.App. LEXIS 249, at *9. Yet the only method of compliance left open to Fowler Trucking, the third method of self-insuring defined in detail in Section 71-3-75, must be met exactingly. In full, the requirement states the following:

(3) Pooling of liabilities. The commission may, under such rules and regulations as it prescribes, permit two (2) or more employers engaged in a common type of business activity or pursuit, or having other reasons to associate, to enter into agreements to pool their liabilities under this section for the purpose of qualifying as group self-insurers, and, in conjunction therewith, to enter into agreements to pool any other liabilities to their employees, and each employer member of such approved group shall be classified as a self-insurer. A self-insured group under this section shall be comprised of employer members of the same bona fide trade association or trade group. Such trade association or trade group shall be domiciled in the State of Mississippi, shall have been in existence for five (5) or more consecutive years as of the date of application for an approved group and shall not be comprised solely of employer members who are affiliates of a person possessing controlling interest in such affiliates.

Miss.Code Ann. § 71-3-75(3) (Rev.2000). There is no evidence Fowler Trucking complied with these procedures.

¶ 27. The majority concerns itself with the relative usefulness of “down-the-line” or “up-the-line” immunity, distinctions which I agree are unnecessary and confusing; further, they appear to be judicial interpretations grafted onto the very explicit requirements of the Act as written by the Legislature. In my view, because Fowler Trucking already qualified as an “employer” under the Act, any discussion or analysis of general contractors, subcontractors, or “down-the-line” or other immunity is unnecessary, as the Act is clear on what is required of an employer. As the Court of Appeals noted, and what should go without saying, “[i]f the subcontractor employs five or more employees, it must secure workers’ compensation coverage.” Lamar, 956 So.2d at 922, 2006 Miss.App. LEXIS 249, at *26. Regardless of whether Fowler Trucking was a subcontractor at this particular worksite, any employer under the Act must have met one of the three methods of compliance.

¶ 28. Ultimately, this case revolves around one key question. Did Fowler Trucking, as an employer, conform to the requirements of Section 71-3-75, which explains the three ways of compliance? The answer, as the Court of Appeals acknowledged, is simply “no.” See Lamar, 956 So.2d at 918, n. 4, 2006 Miss.App. LEXIS 249, at *17 n. 4. It is clear from the facts of this case that Fowler Trucking failed to secure workers’ compensation insurance as required by statute because it did not either: (1) get insurance directly; (2) obtain an exemption; or (3) self-insure or pool liabilities as laid out in the Act or the Workers’ Compensation Commission regulations.

¶ 29. Fowler attempted to argue that “where any employer secures payment of compensation, all employers are immune.” Lamar, 956 So.2d at 922, 2006 Miss.App. LEXIS 249, at *27-28. No section of the Act allows such a result. Under this reasoning, the very heart of the Act — requiring employers with five or more employees to secure insurance — is gutted. As the Court of Appeals reasoned, “we must presume that, due to the absence of language granting immunity to a party such as Fowler Trucking, it was not the legislature’s intent to award such immunity.” Id. at 923, at *33.

¶ 30. Fowler Trucking wishes to hide from the clear requirements of the Act under a cloak of immunity drawn from the complicated and confusing precedent of this Court. Nonetheless, it is an employer and failed to follow one of the three methods of compliance with the Act. It is imperative that we return to a plain reading of the Act and abandon the ongoing “judicial rewrite” that stretches back decades.

¶ 31. The majority is correct when it notes that the immunity of employers is not a gift, but a grant from the Legislature. More precisely, it is also a trade-off of rights: the employee gives up his or her right to maintain suit for insurance, even as the employer must pay for the insurance while gaining assurance of immunity. Yet the majority’s opinion today is a gift not granted by the Legislature. Under its reasoning, and contrary to the intent of the Legislature and the plain language of the Act, some employers will not have to secure insurance.

¶ 32. Because Fowler Trucking failed to secure coverage or exemption under the Act, its statutory immunity is sacrificed; accordingly, I would allow Ms. Lamar to pursue a suit in court for the loss of her father.

II. The Election of Remedies.

¶ 33. I conclude, as did the Court of Appeals, that Fowler Trucking was not immune to suit. I disagree with the Court of Appeals that Ms. Lamar has no right to proceed in the legal system because she has already elected to obtain benefits under the Act.

¶ 34. Section 71-3-9 of the Act provides that when an employer fails to secure payment of compensation as required by the workers’ compensation statutes, “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.” (emphasis added). The Act does not define the term “legal representative,” and this Court has not addressed the precise meaning of this term in connection with § 71-3-9. However, we have examined the term in the context of a previous version of our non-resident motorist statute, Miss.Code Ann. § 13-3-63 (Rev.2002).

¶ 35. In Hill v. James, a Louisiana resident was injured in an automobile accident on a Mississippi highway while riding as a passenger with another Louisiana resident. 252 Miss. 501, 175 So.2d 176 (1965). We carefully analyzed the term “legal representative,” noting that:

The following words ‘or other legal representative of the estate’ ... in our opinion, likewise signify a person or persons acting for the benefit of another in a legal or representative capacity such as an administrator cum testamento an-nexo, administratrix, executrix, administrator de bonis non, administrator de bonis non cum testamento annexo, and others in a like position or class distinct from one as an individual or one in an individual capacity.

Id. at 179. In accordance with this finding, we found that the statute did not “authorize an action to be brought against the widow or minor children of a nonresident decedent in their individual capacities.” Id. at 178.

¶ 36. We more recently sought to ascertain the meaning of the term “representative,” in determining “whether a Mississippi trial court had personal jurisdiction over Louisiana residents pursuant to the long-arm statute.” Sealy v. Goddard, 910 So.2d 502, 506 (Miss.2005). Finding Hill to be instructive, this Court found that “service of process could only be made upon the ‘nonresident executor, administrator, receiver, trustee or any other selected or appointed representative’ ” of the decedent. Id. at 511. We found that “[cjlearly, none of these statutory terms apply to the individual Sealy heirs.” Id.

¶ 37. In this case, Mr. Bobo’s youngest daughter received the funds; she was a minor at the time. In applying the precedent of Hill and Sealy to the language of Section 71-3-9, the payment made to the minor does not result in an election of remedies by Mr. Bobo’s legal representative, his other daughter, Ms. Lamar. According to the statute, when an employer covered by the Act fails to secure coverage, one of two persons can make the election to receive compensation benefits in lieu of suing in tort. That is, the “injured employee or his legal representative in case death results from the injury.” Miss.Code Ann. § 71-3-9 (Rev.2000). Because Mr. Bobo’s injuries ultimately caused his death, only his legal representative could have waived the right to bring suit by electing to claim compensation under the Act.

¶ 38. Should the legal representative of the decedent elect compensation benefits when an employer fails to comply with the Act, then the legal representative has effectively “elected the remedy” according to the Act. However, Section 71-3-9 does not license one of the decedent’s dependent children to settle a claim on behalf of the estate or the wrongful death beneficiaries without an appropriate proceeding before a court, such as the opening of an estate by a personal representative or the initiation of legal proceedings on behalf of the wrongful death beneficiaries. Therefore, contrary to the opinion of the trial court and Court of Appeals, in my reading Ms. Lamar did not elect compensation under the Act when her younger sister received dependent benefits as a result of their father’s death.

¶ 39. For the reasons above, I respectfully dissent from the majority. I would reverse the Court of Appeals and the trial court, finding that Fowler Trucking was not immune to suit and that Ms. Lamar is eligible to pursue her suit in the Mississippi court system.

GRAVES, J., JOINS THIS OPINION.

      . Fowler Trucking was a subcontractor of Golden Timber.

      . Mississippi Loggers Self-Insured Fund.

      .While both the trial court and Court of Appeals found that Bobo’s "beneficiaries” or “heirs” recovered death benefits, we hasten to point out that only one beneficiary, Lamar's younger sister Tracie, was paid dependant benefits as a result of Bobo's death.

      . In a concurring opinion, joined by Griffis and Roberts, JJ., Judge Southwick explained his view that Lamar's tort action was prohibited not because an election was made to accept the death benefits but because Fowler Trucking had secured coverage by paying Golden Timber for workers' compensation coverage.

      . This statutory concept is also applied to a subcontractor of a subcontractor. See Crowe v. Brasfield & Gorrie Gen. Contr., 688 So.2d 752, 757 (Miss.1996).

      . In the case of a subcontractor, securing payment of workers' compensation benefits may be accomplished by either purchasing a workers' compensation insurance policy or by providing funds for the general contractor to purchase the coverage, so long as the coverage is actually secured. A general contractor may secure payment of benefits by purchasing a policy, or by contractually requiring its subcontractors to secure such coverage.

      . Corbitt is the daughter of Carlon Golden, the founder of Golden Timber. She started working for Golden Timber in 1982 as a secretary and stated in her deposition that she has “taken over” the office. Corbitt also served on the board of directors for Fowler Trucking from 1995 until 1997.