Pitzer Snodgrass recently obtained a dismissal of a case involving statutory co-employee claims, with the Court finding there was no duty owed. Plaintiff’s cause of action arose from an incident that occurred in 2010, while he was working at a trucking company’s facility in St. Charles County, Missouri. At the time of this incident, plaintiff was an employee of the trucking company. Defendant was also an employee of the same company at the time of the alleged incident.
Plaintiff alleged in his Amended Petition that he was injured when he opened the door on a truck previously loaded by his co-employee, and plastic skids loaded by defendant came down and struck him. Plaintiff alleged that defendant was instructed not to double stack the plastic skids, yet defendant disregarded this instruction. Plaintiff alleged that defendant’s affirmative acts of not following instructions were outside the scope of his responsibility to provide a safe work place and caused or increased the risk of injury to plaintiff beyond the hazards normally associated with plaintiff’s employment. Plaintiff alleged that defendant was negligent and careless in that he:
Defendant asked the Court to review whether or not plaintiff’s claim was barred by Mo. Rev. Stat. 287.120 (2009), Missouri’s Workers’ Compensation Law (“the Act”).
Standard of Review Presented
“When a workers’ compensation exclusivity defense is raised, the summary judgment standard, i.e., whether a genuine issue of material fact exists, is not the appropriate standard of review.” Collier v. Moore, 21 S.W.3d 858, 860 (Mo. App. E.D. 2000). “Rather, the motion to dismiss should be granted where it appears that the trial court lacks subject matter jurisdiction because of workers’ compensation exclusivity.” Id. “Although the party raising the defense has the burden to prove lack of jurisdiction, the quantum of proof required is not high.” Id. If there is a question of whether or not the Act precludes the cause of action, it should be resolved in favor of the Labor and Industrial Relations Commission. See State ex rel. Larkin v. Oxenhandler, 159 S.W.3d 417, 421 (Mo. App. W.D. 2005); Howell v. Lone Star Industries, Inc., 44 S.W.3d 874, 877 (Mo. App. E.D. 2001); Kesterson v. Wallut, 116 S.W.3d 590, 595 (Mo. App. W.D. 2003).
Argument: Plaintiff’s Cause of Action was Barred by the Act
There is no dispute plaintiff was a statutory employee of the trucking company, and therefore a co-employee of defendant, who was also employed there. The sole question raised in this Motion is whether or not plaintiff has stated a valid cause of action against defendant, as a co-employee.
Missouri’s workers’ compensation statute holds employers liable, irrespective of negligence, to furnish compensation for personal injury of an employee “resulting from an accident arising out of and in the course of the employee’s employment.” Mo. Rev. Stat. § 287.120 (2008).In exchange, the employer is “released from all other liability . . . whether to the employee or any other person.” Id. This statute provides the sole means of recovery against an employer for an employee’s injury resulting from the employer’s failure to provide a safe workplace. State ex rel. Feldman v. Lasky, 879 S.W.2d 783, 785 (Mo. App. E.D. 1994).
In general, a co-employee shares the same immunity from common-law suit as the employer. Lasky, 879 S.W.2d at 785. The reason is that co-employees cannot be held personally liable for their negligence in carrying out their employer’s non-delegable duty to provide a safe workplace. Quinn v. Clayco Construction Co., Inc., 111 S.W.3d 428, 432 (Mo. App. E.D. 2003); State ex rel. Taylor v. Wallace, 73 S.W.3d 620, 621-22 (Mo. banc 2002). The exception to this rule is when the injured worker can demonstrate “circumstances showing a personal duty of care owed by the defendant to the injured worker.” Quinn, 111 S.W.3d at 432. The co-employee owed the injured worker a personal duty of care only if the co-employee “engages in an affirmative act, outside the scope of an employer’s non-delegable duties, directed at the injured worker . . . .” Quinn, 111 S.W.3d at 432 (emphasis added).
Recently, the Missouri Court of Appeals – Eastern District further discussed the issue of co-employee liability in Carman v. Wieland, Cause No. ED98872, 2013 WL 3667931 (Mo. App. E.D.). In Carman, both plaintiff and defendant were employed by the City of Richmond Heights as firefighters. Plaintiff alleged that she was injured when the co-employee defendant backed a fire truck into the station and struck plaintiff causing serious injury. The plaintiff in Carman filed suit against her co-employee and the Missouri Court of Appeals – Eastern District granted summary judgment in favor of the co-employee defendant.
In its ruling, the Court in Carman stated that:
Under the common law, a co-employee’s personal duties to fellow employees do not encompass a legal duty to perform the employer’s non-delegable duties. It is an affirmative act directed at a particular employee that places the co-employee’s conduct outside the scope of the employer’s non-delegable duties. Gunnett, 70 S.W.3d at 641 (emphasis added). At common law, a co-employee who has violated an independentduty to an injured employee can be held liable. Id. at 213 (emphasis in original). Co-employees, however, do not independently owe a duty to their fellow employees to perform the employer’s nondelegable duties because those necessarily derive from the master-servant relationship and are not independent of it. Id. at 214. Consequently, because a co-employee does not owe fellow employees the duty to perform the employer’s non-delegable duties independent of the master-servant relationship, such duties are not personal duties of the co-employee and cannot support an actionable claim of negligence. Id. at 215. In sum, under the common law, a co-employee’s personal duties to fellow employees do not encompass a legal duty to perform the employer’s non-delegable duties. Id. at 217. It is an affirmative act directed at a particular employee that places the co-employee’s conduct outside the scope of the employer’s non-delegable duties. Gunnett, 70 S.W.3d at 641.
The duty to maintain a safe working environment is a non-delegable duty belonging to the employer. Hansen, 375 S.W.3d at 209. Therefore, we hold that a co-employee owes to a fellow employee no common-law duty to exercise ordinary care and safety requiring the co-employee to refrain from operating a vehicle in a negligent manner when driving in the course of his work. As a matter of law, that responsibility is subsumed within an employer’s nondelegable duty to provide a safe working environment. The duty here to operate the fire truck in a safe manner was owed to the plaintiff by the employer. Because the plaintiff failed to allege any duty independent of the employer’s non-delegable duty to provide a safe working environment, the trial court should have granted summary judgment for the defendant on this basis.
Carman v. Wieland, Cause No. ED98872
In this case, like Carmen, the plaintiff had not alleged that the co-defendant employee did an affirmative act directed particularly at the plaintiff as required under Missouri law. Further, the allegations pled by plaintiff did not show that defendant owed a personal duty to plaintiff independent of the employer’s non-delegable duties. Such a finding requires an affirmative act personally directed at plaintiff, which did not occur and was not alleged. Rather, the allegations amounted to nothing more than allegations that a safe workplace was not provided, which is a non-delegable duty of the employer. Accordingly, defendant’s Motion was granted, as the trial court lacked subject matter jurisdiction as the cause of action is barred by the provisions of 287.010 et. seq.
Beginning on January 1, 2014, the Missouri Workers’ Compensation Act applies to mesothelioma and other toxic exposure. On July 11, 2013, Missouri Governor Jay Nixon signed Senate Bill 1, which amended the Missouri Workers’ Compensation Act, modifying the Act’s language regarding the Second Injury Fund and occupational diseases. For the purposes of this article, we will focus on the changes to the Act made to occupational diseases under Senate Bill 1.
The amended language of the Act affirmatively states that occupational diseases are covered under workers’ compensation laws. The amended Act specifically defines occupational diseases due to toxic exposure. The Missouri Revised Statutes Section 287.067.11 defines “occupational diseases due to toxic exposure”. The Act limits these diseases to mesothelioma, asbestosis, beryllosis, coal worker’s pneumoconiosis, bronchiolitis obliterans, silicosis, silocotuberculosis, manganism, acute myelogenous leukemia and myelodysplastic syndrome. RSMo. 287.200.4 creates an expanded benefit when an employee becomes permanently or totally disabled or dies as a result of one of the aforementioned diseases. For occupational diseases due to toxic exposure other than mesothelioma, the benefit is equal to 200% of the State’s average weekly wage for 100 weeks to be paid by the employer. For cases involving mesothelioma an additional amount of 300% of the State’s average weekly wage for 212 weeks shall be paid by the employer.
Once these toxic exposure awards are exhausted, permanent total disability shall be awarded to the injured worker. Upon death, the enhanced benefits must be paid to the employee’s dependents or become an asset of the employee’s estate if there are no dependents.
Additionally, the amended Act creates the Missouri Mesothelioma Risk Management Fund, which pays the benefits awarded in claims brought against the Fund’s contributing members. The Fund requires annual contributions to be made by its members. Employers who do not obtain insurance for mesothelioma liability shall not fall under the exclusive remedy provisions of the Act, therefore, a claim may be brought against these employers in civil court.
The Missouri Workers’ Compensation Act is the exclusive remedy for plaintiffs who are considered employees under the Act. If the employer insures for mesothelioma liability, the employee must bring their claim of occupational disease due to toxic exposure in the workers’ compensation system. Plaintiffs will still have the remedy to bring a civil case against manufacturers, distributors, and suppliers who allegedly contributed to their asbestos related disease. The effect for Missouri employers of the exclusive remedy of the Missouri Workers Compensation Act, is that the awards are capped, however, there will most likely only be one employer-defendant (or their insurer) to bear the brunt of this award.
It remains to be seen if in the plaintiff’s civil case against manufacturer, distributor, and supplier defendants, whether evidence of asbestos exposure adduced in the underlying workers’ compensation case will be conclusive evidence of asbestos exposure by the civil defendants. Additionally, it is unclear whether the defendants in a civil asbestos case could claim the workers’ compensation award as an offset against damages awarded to a plaintiff.
Though has yet to be any case law to interpret the amended Act, a recent Motion for Summary Judgment based on the exclusivity of the Missouri Workers Compensation Act was argued in St. Louis City in front of Judge Robert Dierker. In Rohletter v. Aerco International, et al, Defendant Southern Industrial argued that since the plaintiff was an employee of Southern Industrials’ predecessor, the Missouri Workers Compensation exclusive remedy should apply and the plaintiff would be required to pursue a claim in the workers compensation system. Southern Industrial argued that the newly amended Act would apply.
Judge Dierker indicated the Missouri Supreme Court had decided that the right to a trial cannot be trumped by the workers’ compensation system. Even when defense counsel pointed out the Missouri Workers’ Compensation Act provided for exclusive jurisdiction, Judge Dierker felt that the plaintiff had the right to bring their case in civil court. Judge Dierker interpreted the new amendment to apply to cases that “arise” after the January 1, 2014 effective date of the amendment. He indicated the key is when the claim “arose”, which would mean that the death or diagnoses would have to occur after January 1, 2014.
The full effect of these amendments to Missouri Workers’ Compensation Act has yet to be seen, but there is no doubt these amendments will change the landscape of asbestos litigation in Missouri.