ROBINSON v. HOOKER

• Decision Date: 03 August 2010
• Docket Number: No. WD 71207.,WD 71207.
• Citation: 323 S.W.3d 418
• Parties: Richard ROBINSON, et al., Appellant, v. Cheryl HOOKER, Respondent.
• Court: Missouri Court of Appeals

323 S.W.3d 418

Richard ROBINSON, et al., Appellant,
v.
Cheryl HOOKER, Respondent.

No. WD 71207.

Missouri Court of Appeals,Western District.

Aug. 3, 2010.

323 S.W.3d 419

COPYRIGHT MATERIAL OMITTED.

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Patrick B. Starke, Esq., Blue Springs, for appellant.

Jamie L. Cook, Esq., Kansas City, for respondent.

Before Division One: LISA WHITE HARDWICK, Chief Judge Presiding, JAMES M. SMART, JR., and MARK D. PFEIFFER, Judges.

LISA WHITE HARDWICK, Chief Judge.

Richard Robinson appeals the dismissal of his negligence claim against his co-employee, Cheryl Hooker, following a workplace accident. Robinson contends the circuit court erred in determining his negligence claim was barred by the exclusivity provisions of the Workers' Compensation Act and the doctrines of res judicata and official immunity. For reasons explained herein, we reverse the dismissal and remand the cause to the circuit court.

I. Factual and Procedural History

On October 23, 2007, Robinson and Hooker were performing street cleaning tasks as employees of the City of Kansas City, Missouri. Hooker lost her grip on a high pressure hose that swung wildly and struck Robinson, causing blindness in his right eye. Robinson filed a workers' compensation claim for permanent partial disability benefits, which he settled with the City on January 30, 2009.

Two months later, Robinson filed a Petition against Hooker in the Jackson County Circuit Court. The petition alleged that Robinson suffered an eye injury as a result of Hooker's negligence in failing to use ordinary care while operating a high pressure hose. The petition also included a loss of consortium claim for Robinson's wife, Nadine. Hooker filed a Motion to Dismiss, asserting the court lacked subject matter jurisdiction because the Workers' Compensation Act provided Robinson's exclusive remedy for his injury claim against a co-employee. Alternatively, the motion asserted that Robinson's negligence claim was barred by the doctrines of res judicata and official immunity.

The circuit court granted Hooker's motion without explanation. Robinson appeals the dismissal of his petition.

II. Standard of Review

A motion to dismiss is an attack on the petition and solely a test of the adequacy of the pleadings. Wheeler v. Sweezer, 65 S.W.3d 565, 568 (Mo.App.2002). On appeal of a judgment granting dismissal, this court must determine if the facts pleaded and the reasonable inferences therefrom state any grounds for relief. Id. We must assume the factual allegations are true and make no attempt to weigh credibility or persuasiveness. Johnson ex rel. Wilken v. Jones, 67 S.W.3d 702, 705 (Mo.App.2002). “Our review is a de novo examination of whether the petition invokes principles of substantive law.” Clark v. Clark (In re Estate of Clark), 83 S.W.3d 699, 702 (Mo.App.2002).

When the circuit court does not provide reasons for dismissing a petition, we must presume the decision was based on the grounds stated in the motion to dismiss. Duvall v. Lawrence, 86 S.W.3d 74, 78 (Mo.App.2002). We will affirm if dismissal was appropriate on any of the grounds asserted by the movant. Id. In this case, Hooker moved for dismissal based on the exclusivity of the Workers' Compensation Act, res judicata, and official immunity. Because the circuit court did not explain the grounds for its decision, we must consider whether the dismissal was appropriate under any of the grounds asserted. Rychnovsky v. Cole, 119 S.W.3d 204, 208 (Mo.App.2003).

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III. Issues on Appeal

A. Workers' Compensation Act

In her Motion to Dismiss, Hooker argued the circuit court lacked subject matter jurisdiction because the Workers' Compensation Act, Section 287.120, ¹ provides the exclusive remedy for Robinson's injury claim against a co-employee. Robinson contends the court erred in dismissing his petition on this ground because the Act does not bar civil claims against co-employees, based on a 2005 amendment requiring strict construction of the exclusivity provision. § 287.800.

As a preliminary matter, we find that Hooker's defense of immunity under the Workers' Compensation Act did not raise a jurisdictional defect. In McCracken v. Wal-Mart Stores E., LP, 298 S.W.3d 473, 479 (Mo. banc 2009), the Supreme Court recently recognized that the circuit court has subject matter jurisdiction over personal injury claims pursuant to article V, section 14 of the Missouri Constitution, and the statutory provisions of the Workers Compensation Act cannot overrule that constitutional authority. ² Thus, any claim of immunity under the Act “is not a question that affects the circuit court's subject matter jurisdiction” and should not be raised in a motion to dismiss. Id. The proper procedure for raising the Act's applicability is as an affirmative defense, as provided in Rules 55.08 and 55.27(a). ³ Id.

Because McCracken was decided while this case was pending, we must consider Hooker's claim of immunity as preserved by the filing of her motion to dismiss. Id. at 480. For purposes of this appeal, we will proceed as if Hooker had filed a responsive pleading asserting the affirmative defense of employer immunity under Section 287.120. This procedural posture allows us to address the issue presented: Whether Hooker, as Robinson's co-employee, can properly seek immunity from the civil suit based on a strict construction of the Act's exclusivity provisions.

1. History of Co-Employee Immunity

Historically, prior to the passage of workers' compensation laws, an employer was not liable for injuries to an employee caused by the negligent acts of a “fellow servant.” Bender v. Kroger Grocery & Baking Co., 310 Mo. 488, 276 S.W. 405, 406 (1925). Missouri courts gradually increased the employer's tort liability for these injuries based on the theory that an employer has a non-delegable duty to provide a safe place to work. Id. If a co-employee was negligent in performing the non-delegable duty of an employer, the employer could be held responsible for the resulting injuries to other employees. Mitchell v. Polar Wave Ice & Fuel Co., 206 Mo.App. 271, 227 S.W. 266, 269 (1921).

In 1926, the Workmen's Compensation Act made the employer responsible for providing benefits to injured employees in exchange for the employer receiving immunity against tort claims for the injuries. Gunnett v. Girardier Bldg. & Realty Co., 70 S.W.3d 632, 635 n. 2, 635-36 (Mo.App.2002). Following the common law approach, courts later extended the statutory

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immunity to co-employees for negligence in performing a non-delegable duty of the employer. State ex rel. Badami v. Gaertner, 630 S.W.2d 175, 179 (Mo.App.1982).

In Badami, this judicial extension of immunity was deemed necessary to “fix” the Act's omission of agency principles in determining liability for workplace injuries. Id. at 178. Under Badami and its progeny, a co-employee could not be sued unless there was a showing of “something more” than a breach of the employer's duty to provide a safe workplace. Id. at 180; State ex rel. Taylor v. Wallace, 73 S.W.3d 620, 622 (Mo. banc 2002) ( overruled on other grounds by McCracken, 298 S.W.3d at 478-79). The “something more” test required proof that a co-employee engaged in an affirmative negligent act that purposefully and dangerously caused or increased the risk of injury. Taylor, 73 S.W.3d at 622.

2. Statutory Construction

Prior to 2005, Section 287.800 mandated that “[a]ll provisions of [the Workers' Compensation Act] shall be liberally construed with a view to the public welfare.” Under this standard, courts broadly interpreted the Act to extend benefits to the largest possible class and resolved any doubts as to the right of compensation in favor of the employee. Schuster v. State Div. of Emp't Sec., 972 S.W.2d 377, 384 (Mo.App.1998).

In 2005, the Act was amended to eliminate the requirement of liberal construction. Section 287.800 now provides:

Administrative law judges, associate administrative law judges, legal advisors, the labor and industrial relations commission, the division of workers' compensation, and any reviewing courts shall construe the provisions of this chapter strictly.

(Emphasis added.) This change requires the courts to use principles of strict construction in applying all provisions of the workers' compensation statute.

Strict construction means that a “statute can be given no broader application than is warranted by its plain and unambiguous terms.” Harness v. S. Copyroll, Inc., 291 S.W.3d 299, 303 (Mo.App.2009). The operation of the statute must be confined to “matters affirmatively pointed out by its terms, and to cases which fall fairly within its letter.” Allcorn v. Tap Enters., Inc., 277 S.W.3d 823, 828 (Mo.App.2009) ( citing 3 Sutherland Statutory Construction § 58:2 (6th ed.2008)). “ ‘A strict construction of a statute presumes nothing that is not expressed.’ ” Id. (quoting Sutherland, supra.)

3. Strict Construction of Employer Immunity Provisions

Based on the new requirement of strict construction, Robinson argues that the exclusivity provisions of the Workers' Compensation Act, which grants employer immunity from civil claims, cannot be applied to co-employees. Section 287.120 of the Act provides:

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