MSSC Turns the Battleship Around in Transocean Enterprise
I haven't had time to compare and contrast, but the Mississippi Supreme Court has pulled a fairly dramatic about-face with today's grant of rehearing and subsequent reconsideration of Transocean Enterprise v. Ingalls Shipbuilding.
When the Court first handed down the case in September, it held that Section 31-5-41 of the Mississippi Code voided indemnification for injuries to an injured worker. The original has been taken down off the Court's Web site, but it's still available for the time being on Google Scholar.
But today, the Court withdrew its original opinion and held that although the statute "could reasonably be interpreted as invalidating indemnity or 'hold-harmless' clauses in construction contracts to indemnify another person from that person's own negligence," that determination was not reviewable because the parties had "stipulated that the issue of tort allocation of liability was not before the trial court."
There's sure to be a lot more to be gleaned, but the comparison seems to reveal that this is a textbook Rule 40 example of a case in which "the court has overlooked or misapprehended" particular factual aspects of the case. Justice Carlson wrote both majority opinions, so there doesn't appear to have been any vote-flipping going on...just a misapprehension of what exactly was on the Court's plate.
There is another counting issue going on here. Part I of Graves' dissent says the case should have been reversed for failure to raise an affirmative defense, which was joined in by Kitchens and Randolph and Chandler in part. Then Randolph writes a special concurrence which says he agrees with Graves that the defendant failed to rimely raise an affirmative defense. Randolph's special concurrence was joined in by Chandler, Dickinson and Pierce.
That means Graves, Kitchens, Chandler, Randolph, Dickinson and Pierce agreed that the defendant waived its affirmative defense. That's 6 out of 9, a majority. The court should have reversed the case on the affiramtive defense issue only without getting into other issues.
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The dissent's waiver argument is wrong. They make a great deal about the statutory defense not being brought up until 6.5 years after the answer was filed. But Judge Graves completely ignores the fact that this case was stayed for that entire time while the underlying liability case proceeded in the Fifth Circuit.
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In fairness, the Answer didn't raise the defense with any degree of specificity. I haven't seen the record, but that pretrial brief sounds like the first moment in the entire course of the litigation when a citation to that statute appeared.
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