Mississippi Executive’s Survivors Awarded Death Benefits in Spite of His Decision Not to Secure Required Coverage for Firm

The affirmative decision by the managing partner and president of a CPA firm not to secure workers’ compensation coverage for the firm, in spite of the fact that the firm had at least five employees and was obligated to secure coverage, did not operate as an executive officer’s rejection of coverage under Miss. Code Ann. § 71–3–79, so as to disqualify his surviving spouse and daughter from receiving death benefits following the partner’s death from a stroke, held a divided Court of Appeals of Mississippi recently. The statute, which states that an “executive officer may reject [the] coverage by giving notice in writing to the carrier of this election not to be covered as an employee,” was not ambiguous, indicated the court. Accordingly, the plain meaning of the provision had to be applied. At no point did the partner reject the coverage by giving notice in writing. The Commission’s finding that the partner did not opt out of coverage was, therefore, supported by substantial evidence, held the divided court in Harper v. Banks, Finley, White & Co., 2014 Miss. App. LEXIS 211 (Apr. 15, 2014).

The CPA firm had argued that it was hardly possible for the partner to give notice to a carrier since no carrier had been contacted to write any coverage. The firm contended that the partner’s “executive decision” not to secure coverage amounted to an executive “opt out.” The irony here is that had the partner secured coverage for the firm and given “opt out” notice to the carrier, his survivors would have had no viable claim. His decision, however, to withhold coverage from everyone meant his survivors could pursue and recover.

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