Akers v. Warson Garden Apartments

• Decision Date: 27 January 1998
• Docket Number: No. 80240,80240
• Parties: Gary P. AKERS, Deceased, et al., Respondents/Cross-Appellants, v. WARSON GARDEN APARTMENTS and Half Moon Village, Inc., et al., Appellants/Cross-Respondents.
• Court: Missouri Supreme Court

Page 50

961 S.W.2d 50

Gary P. AKERS, Deceased, et al., Respondents/Cross-Appellants, v. WARSON GARDEN APARTMENTS and Half Moon Village, Inc., et al., Appellants/Cross-Respondents.

No. 80240.

Supreme Court of Missouri En Banc.

Jan. 27, 1998.

Kim M. Parks, Evan and Dixon, St. Louis, for Appellants/Cross-Respondents.

Mariano V. Favazza, St. Louis, Francis X. Duda, Anderson & Gilbert, St. Louis, for Respondents/Cross-Appellants.

Ronald C. Gladney, Bartley, Goffstein, Bollato & Lange, L.L.C., Clayton, for amicus curiae.

PER CURIAM. ¹

Warson Garden Apartments and Half Moon Village, Inc., (Employer) and its insurer, Lumbermens Mutual Insurance Company, appeal and the dependents of Gary P. Akers (Employee) cross-appeal from an award of the Labor and Industrial Relations Commission (Commission). Affirmed in part; reversed in part; remanded.

Employer rents apartments and townhouses in St. Louis County. Employee worked as a maintenance person for Employer. On October 23, 1992, Employee and Frank Caliendo, who also worked as a maintenance person for Employer, were working in one of Employer's townhouses. They were using E-Z Lacquer Thinner to help remove tile glue from the basement floor. Employee was standing in a pool of the lacquer thinner when Caliendo saw a blue flame suspended in the air in the doorway of the basement's utility room. Caliendo yelled to Employee, "It's a fire" and "run." Caliendo then started to run to the stairs and would later state, "I must have got one, maybe two steps on the stairs and it blew me halfway up the stairs." When Caliendo realized Employee was not behind him, he unsuccessfully attempted to retrieve a garden hose to put out the fire. Caliendo then went back into the townhouse and helped Employee get out of the building. According to one expert, a suspended vapor flash type fire occurred as a result of the lacquer thinner being poured in the basement and "vaporizing and migrating to the ignition source," a hot water heater. Employee was taken to the hospital and died the following day.

The three minor children of Employee (Claimants) filed a claim for workers' compensation benefits. After filing their claim, Claimants entered into a third-party settlement on their separate civil action. ²

An administrative law judge (ALJ) conducted a hearing and: (1) found Employer's violation of two state statutes and five sections of the Occupational Safety and Health Act were the "efficient" cause of Employee's death; (2) found Claimants were entitled to only one fifteen percent increase of the compensation and death benefit under the provision of section 287.120.4 ³; (3) found Employer forfeited its right to subrogation of the increase in the compensation and death benefit awarded under section 287.120.4; (4) rejected Claimants' contention that Employer waived all of its subrogation rights because of the safety violations; and (5) awarded forty weeks of benefits under section 287.190.4 for disfigurement. The Commission modified portions of the ALJ's award and concluded that: (1) for purposes of the provision of section 287.120.4, requiring an increase in the compensation and death benefit, there was no causal connection between Employee's failure to be using a respirator, see section 292.320, and his death, but there was a causal connection between the violation of section 292.080 and Employee's death; (2) the ALJ properly determined that Claimants were entitled to only one fifteen percent increase of the compensation and death benefit under section 287.120.4; and (3) disfigurement benefits should not be awarded. The Commission also modified the ALJ's calculation of the increase required under section 287.120.4. Employer and its insurer appeal and Claimants cross-appeal.

Review is only on questions of law. The Court will modify, reverse, remand or set aside an award only if the Commission acted without or in excess of its powers, the award was procured by fraud, the facts found by the Commission do not support the award, or there was not sufficient competent evidence in the record to warrant the making of the award. Section 287.495; Thompson v. Delmar Gardens, Chesterfield, 885 S.W.2d 780, 782 (Mo.App.1994). When reviewing the sufficiency of the evidence, the Court is limited to determining whether the Commission's award is supported by competent and substantial evidence on the whole record. Searcy v. McDonnell Douglas Aircraft Co., 894 S.W.2d 173, 176 (Mo.App.1995). The evidence and inferences are reviewed in the light most favorable to the award, and the Commission's findings will be set aside only when they are clearly contrary to the overwhelming weight of the evidence. Id.

Fifteen Percent Increase of Benefit--Section 287.120.4

Employer first argues that the Commission erred in increasing the compensation and death benefit under section 287.120.4. ⁴ This section provides:

Where the injury is caused by the failure of the employer to comply with any statute in this state or any lawful order of the division or the commission, the compensation and death benefit provided for under this chapter shall be increased fifteen percent.

To be entitled to the fifteen percent increase under section 287.120.4, a claimant must demonstrate the existence of the statute or order, its violation, and a causal connection between the violation and the compensated injury. State ex rel. River Cement Co. v. Pepple, 585 S.W.2d 122, 125 (Mo.App.1979). The Commission found that a fifteen percent increase under section 287.120.4 was proper because Employer violated section 292.080 and there was a causal connection between the violation of this statute and Employee's death. Section 292.080 provides: "No explosive or inflammable compound shall be used in any establishment in this state where labor is employed, in such place or manner as to obstruct or render hazardous the egress of operatives in case of fire."

Employer asserts that section 292.080 is not applicable for the townhouse where Employee was working. The primary role of the courts when construing statutes is to ascertain the intent of the legislature from the language used in the statute and, if possible, give effect to that intent. Abrams v. Ohio Pacific Exp., 819 S.W.2d 338, 340 (Mo. banc 1991). In determining legislative intent, statutory words and phrases are given their plain and ordinary meaning, and this meaning is generally derived from the dictionary. Id. Where no ambiguity exists, there is no need to resort to rules of statutory construction. Id. However, if an ambiguity exists, one "compelling" rule of construction requires the courts to presume that the legislature did not intend to enact an absurd law and favors a construction that avoids unjust or unreasonable results. Id. at 341.

Employer contends that the townhouse was not an "establishment" as that term is defined; therefore, it cannot be found to have violated section 292.080. An "establishment" is defined as a place of business. Black's Law Dictionary 490 (5th ed.1979). The evidence established that Employer's business was leasing apartments and townhouses. Employer was engaged in a commercial activity and derived revenue from leasing townhouses. The townhouse where the accident occurred was a place of business of Employer and, therefore, an establishment for purposes of section 292.080.

Employer also contends that section 292.080 only applies to factories. In 1891, the legislature enacted several sections under chapter 292, including section 292.080. These sections have been referred to as the "so-called Factory Act." Martin v. Star Cooler Corporation, 484 S.W.2d 32, 35 (Mo.App.1972); Johnson v. Bear, 225 Mo.App. 1097, 40 S.W.2d 481, 484 (1931). However, several sections provide language that shows the statutes are not applicable only to factories. Section 292.020 requires machinery to be properly guarded or notice posted "in all manufacturing, mechanical and other establishments in this state...." Section 292.050 refers to "every manufacturing, mechanical or mercantile or public buildings in this state...." Several other sections enacted in 1891 are not limited to factories. See, e.g., sections 292.060; 292.110; 292.130; 292.140. Review of the relevant sections enacted in 1891 demonstrates the legislature did not intend to limit the "so-called Factory Act" to factories, and Employer's contention fails.

Employer's reliance on Johnson, where the court held that a farm was not an "other establishment" for purposes of section 292.020, is misplaced. In that case, the court recognized the unique nature of farming and that the worker's compensation act, RSMo 1929, excluded employment of farm labor. Johnson, 40 S.W.2d at 484-485. This analysis is not applicable to a townhouse.

Employer next argues that section 292.080 was not violated because there is not sufficient evidence to show Employee's egress was made more difficult by the presence of lacquer thinner between him and the steps. Frank Caliendo testified that, when the fire started, Employee was standing in the lacquer thinner, and it was between Employee and the steps. He also testified there was not any lacquer thinner between him and the steps, and he was able to get to the first or second step of the stairs. An expert testified that based on his belief as to where the lacquer thinner was poured, Employee was in the "envelope" of the vapors, which had surrounded him. The expert also stated once the vapors from the lacquer thinner that surrounded Employee ignited, he had no chance to escape from the basement without substantial injury. There is sufficient and competent evidence to support the Commission's finding that the lacquer thinner was used in such a manner as to render hazardous the egress of Employee when the fire occurred.

Employer next argues that the evidence fails to support a finding of a causal connection between a violation of section 292.080 and Employee's death. Employer asserts that regardless of any...