Dorlaque v. Norfolk & W. Ry. Co., 80-1005C(B).

• Decision Date: 30 June 1981
• Docket Number: No. 80-1005C(B).,80-1005C(B).
• Citation: 520 F. Supp. 50
• Parties: William DORLAQUE, et al., Plaintiffs, v. NORFOLK AND WESTERN RAILWAY COMPANY, Defendant and Third-Party Plaintiff, v. KAPLAN LUMBER COMPANY, INC., a corporation, Third-Party Defendant.
• Court: U.S. District Court — Eastern District of Missouri

520 F. Supp. 50

William DORLAQUE, et al., Plaintiffs, v. NORFOLK AND WESTERN RAILWAY COMPANY, Defendant and Third-Party Plaintiff, v. KAPLAN LUMBER COMPANY, INC., a corporation, Third-Party Defendant.

No. 80-1005C(B).

United States District Court, E. D. Missouri, E. D.

June 30, 1981.

Rex Burlison, O'Fallon, Mo., for plaintiffs.

Albert Schoenbeck, St. Louis, Mo., for defendant and third-party plaintiff.

Richard Funsch, St. Louis, Mo., for Kaplan.

MEMORANDUM AND ORDER

REGAN, District Judge.

Norfolk and Western Railway Company, the defendant in this suit, has filed a third-party complaint against Kaplan Lumber Company. This matter is before the Court on Kaplan's motion for summary judgment on this third-party complaint.

In this action, plaintiff, William Dorlaque, seeks recovery for personal injuries which resulted when the vehicle in which he was sitting was struck by a railroad locomotive being operated by the defendant, Norfolk and Western Railway Company. Norfolk and Western seeks indemnity from Kaplan on the basis of a written Siding Agreement between the parties.

The Siding Agreement between Kaplan and defendant provides in part as follows:

"The Industry Kaplan will indemnify and hold harmless the Railway for loss, damage or injury from any act or omission of the industry, its employees or agents, to the person or property of any other person or corporation while on or about said track; and if any claim or liability other than fire arises from the joint or concurring negligence of both parties hereto it shall be borne by them equally."

Prior to this suit, plaintiff William Dorlaque filed a workmen's compensation claim against Kaplan as his employer and was awarded and paid compensation. The signed receipt indicated that payment was made by Crown Homes Corporation and the insurer.

It is undisputed that Crown Homes was a wholly owned subsidiary of Kaplan and that Crown Homes was using the railroad siding in question with the approval of Kaplan and the Railway.

Kaplan argues that it has no liability to Norfolk and Western because it was the plaintiff's employer and has paid the workmen's compensation claim of the plaintiff pursuant to RSMo. 287.120.1 and thus is released from any further liability. The Railway maintains that Kaplan's liability for indemnity is contractual and thus not barred by the Act. It further contends that Kaplan was not William Dorlaque's employer and so may not rely on the statutory release.

Regardless of whether or not plaintiff was employed by Kaplan, it is our opinion that third-party defendant Kaplan is entitled to summary judgment. If plaintiff was an employee of Kaplan the statutory release from further liability applies as provided for in the Workmen's Compensation Act. If plaintiff was not an employee of Kaplan then no duty was owed to the plaintiff by Kaplan.

Missouri's Workmen's Compensation statute, Section 287.120 RSMo., provides for liability of the employer, irrespective of negligence, for the personal injury of an employee by accident arising out of and in the course of his employment. This section also dictates that the employer shall be released from all other liability therefor, whether to the employee or to any other person.

Defendant asserts that the above release does not bar this third-party complaint because it is based on a contractual indemnification agreement between the Railway and Kaplan. This exception to the statutory release of liability was set out in McDonnell Aircraft Corporation v. Hartman-Hanks-Walsh Painting Co., 323 S.W.2d 788 (Mo. 1959). In McDonnell, "The court allowed the non-employer defendant to maintain an indemnity action against the employer of the injured employee but only on the basis that the employer defendant (Hartman) had breached a duty it expressly agreed (contracted) to perform with the non-employer (McDonnell)." The quoted language is from State ex rel. Maryland Heights Concrete Contractors, Inc. v. Ferriss, 588 S.W.2d 489, 490 (Mo.Banc.1979). Such a ruling does not hold the employer liable for the personal injury of his employee but instead holds him liable for the breach of an independent duty to a third-party which the employer expressly agreed to perform. The court added that "(t)he rationale of the McDonnell case, supra, supports the conclusion that aside from the exception noted therein, the employer is not liable to the non-employer defendant for any sums that non-employer party is liable for...