Amesquita v. Gilster-Mary Lee Corp.

• Decision Date: 10 September 2013
• Docket Number: No. ED 99266.,ED 99266.
• Citation: 408 S.W.3d 293
• Parties: Fidel AMESQUITA, et al., Appellants, v. GILSTER–MARY LEE CORPORATION, et al., Respondents.
• Court: Missouri Court of Appeals

408 S.W.3d 293

Fidel AMESQUITA, et al., Appellants,

v.GILSTER–MARY LEE CORPORATION, et al., Respondents.

No. ED 99266.

Missouri Court of Appeals,

Eastern District,

Division Three.

Sept. 10, 2013.

Gary M. Matheny, Gary M. Matheny, P.C., Farmington, MO, and Robert L. DeVoto, Robert L. DeVoto, L.C., St. Louis, MO, for appellants.

Charles S. Elbert, Kevin A. Sullivan, Kohn, Shands, Elbert, Gianoulakis & Giljum, LLP, St. Louis, MO, and David M. Remley, The Remley Law Firm, Cape Girardeau, MO, for respondents.

KURT S. ODENWALD, Judge.

Introduction

Fidel Amesquita, Georgia Hawthorne, Sara Lane, Rachane Thitakom, and Mary Whiteside (collectively “Plaintiffs”) appeal from the trial court's order granting the motions to dismiss of Gilster–Mary Lee Corporation (“GML”) and Eric Asselmeier (“Asselmeier”), Donald Welge (“Welge”), Anthony Berry (“Berry”), and Gary Layton (“Layton”) (collectively “Employee Defendants”). Plaintiffs alleged they suffered occupational diseases from diacetyl exposure while working at GML's popcorn production facility and that GML is liable in tort for ordinary negligence and punitive damages (Count I). Plaintiffs also alleged that Employee Defendants were individually liable under the “something more” doctrine and for civil conspiracy (Count II). Finally, Plaintiffs alleged the Employee Defendants were also liable for ordinary negligence (Count III). The trial court granted GML's and Employee Defendants' (collectively “Defendants”) motions to dismiss Plaintiffs' amended petition on the ground that The Workers' Compensation Law, as amended in 2005,¹ provided Plaintiffs' exclusive remedy against GML, and that Plaintiffs failed to state a claim against Employee Defendants.

Because The Workers' Compensation Law as amended in 2005 did not provide the exclusive remedy available to Plaintiffs' seeking damages for occupational disease injuries that occurred within the scope of their employment, Defendants' affirmative defense of workers' compensation exclusivity fails as a matter of law. Accordingly, we reverse the trial court's judgment dismissing Plaintiffs' Count I against GML and remand Plaintiffs' claim for trial.

Because Plaintiffs do not allege an independent duty owed by Defendant Employees to Plaintiffs, Plaintiffs allegations fail to state a cause of action against Employee Defendants for negligence, or any related action for civil conspiracy. Therefore, we affirm the trial court's judgment dismissing Counts II and III.

Factual and Procedural History

Plaintiffs were employed in GML's popcorn production facility in McBride, Missouri. Popcorn produced at the McBride facility contained butter flavoring made from diacetyl. Diacetyl is produced from methyl ethyl ketone, a known lung, eye, and skin irritant. The butter flavoring used at the McBride facility was delivered using hydrogenated soybean oil, which becomes gaseous at 46 to 47 degrees Fahrenheit. The hydrogenated soybean oil used in the facility was heated to 110 to 120 degrees Fahrenheit, causing the oil and artificial flavoring to spread through the air. The heating vessels used to heat the soybean oil were also cleaned using compressed air, further dispersing the residual artificial flavoring.

GML's popcorn production facility in Jasper, Missouri used the same artificial butter flavoring. Beginning in 2001, GML, Welge, and Asselmeier became aware that workers in the Jasper facility had developed bronchiolitis obliterans, a severe respiratory disease associated with breathing the heated artificial butter flavoring. GML and Asselmeier were also notified that the artificial butter flavor used in the McBride facility could cause bronchiolitis obliterans, and were given recommendations on how to improve ventilation in the McBride facility in order to reduce the danger.

On March 30, 2004, GML distributed to Plaintiffs and its other employees a letter authored by Welge. The letter states in relevant part as follows: ²

We understand that some lawyers have arrived in the area looking for claims like those made by some former workers at the popcorn plant in Jasper, Missouri. It is certainly your decision whether or not to meet with these lawyers, but we feel it is very important you know the following facts.

• First, the flavor that was the subject of the lawsuit involving the former Jasper employee, manufactured by a company called International Flavors & Fragrances, is not and has never been used in McBride.

• Second, we have never had any claims of breathing illnesses of this nature reported at the McBride plant.

• Third, we have tested both the plant air and some employees at the McBride plant. These tests have shown no reason for us to believe a problem exists at the McBride plant.

• Finally, the situation at Jasper prior to Gilster–Mary Lee buying it in 1999 is substantially different from that at McBride.

On July 7, 2011, Plaintiffs filed an amended petition containing three counts. In Count I, Plaintiffs alleged GML breached its duty of care to Plaintiffs by failing to provide a work environment safe from the effects of diacetyl-containing butter flavoring. Plaintiffs alleged compensatory damages and sought punitive damages against GML. In Count II of their amended petition, Plaintiffs alleged claims against the Employee Defendants under the “something more” doctrine, asserting that the Employee Defendants affirmatively misrepresented the safety of working with diacetyl, causing Plaintiffs' injuries. Count II also alleged claims for civil conspiracy, asserting that the Employee Defendants actively engaged in a civil conspiracy to hide the risks of diacetyl exposure from Plaintiffs in order to avoid the cost of making the facility safe.

In Count III, Plaintiffs alleged that the Employee Defendants are liable in ordinary negligence for the same acts and omissions as alleged against GML in Count I. Plaintiffs additionally assert that under the 2005 amendments to The Workers' Compensation Law, the Employee Defendants are not protected by employer or co-employee immunity. GML and the Employee Defendants ³ filed a joint answer and affirmative defenses, and subsequently filed separate motions to dismiss.

GML's motion to dismiss was based on its affirmative defense of workers' compensation exclusivity. GML argued that under Section 287.120, The Workers' Compensation Law provided Plaintiffs the exclusive remedy for any injuries they may have incurred during their employment, and thus the trial court lacked statutory authority to hear the case. GML also argued that, in the alternative, the trial court should stay the action pending a determination by the Commission as to whether Plaintiffs' alleged injuries were covered by the Law.

Employee Defendants, including Welge, also filed a joint motion to dismiss Counts II and III of Plaintiffs' amended petition for failure to state a claim. Employee Defendants contended that Counts II and III failed to state a claim because the allegations did not aver that the Employee Defendants breached any duty to Plaintiffs other than GML's non-delegable duty to provide a safe work environment. Employee Defendants also argued that Count II of Plaintiffs' amended petition invoking the “something more” doctrine should be dismissed because Plaintiffs failed to allege sufficient facts, which if true, would establish that Employee Defendants committed any affirmative act of negligence. EmployeeDefendants maintained Count II of Plaintiffs' amended petition for civil conspiracy must fail because Plaintiffs' did not allege any agreement by or among the Employee Defendants to commit a wrongful or unlawful act. Employee Defendants also averred the exclusivity provisions of that Section 287.120 barred Plaintiffs' negligence claim under Count III. Finally, Employee Defendants alleged that Welge should be dismissed from the action due to improper service of process.

After a hearing, the trial court granted each of the Defendants' separate motions to dismiss. The trial court held that it lacked statutory authority to hear Plaintiffs' claim against GML because of the exclusivity provision of Section 287.120. The trial court also granted Employee Defendants' motion to dismiss Counts II and III for failure to state a claim. Plaintiffs now appeal.

Points on Appeal

In their first point on appeal, Plaintiffs assert that the trial court erred in granting Defendants' motions to dismiss because, following the 2005 amendments to The Workers' Compensation Law, Plaintiffs' occupational disease claim is not limited to the workers' compensation system, but is cognizable in circuit court as a common law tort claim. In their second point, Plaintiffs contend the trial court erred in denying their claims of negligence under the “something more” doctrine and for civil conspiracy against Employee Defendants for failure to state a claim. In Point III, Plaintiffs argue the trial court erred in granting Defendants' motions to dismiss related to Plaintiffs' claims for punitive damages.

Standard of Review

We review de novo whether a petition states a claim. Fenlon v. Union Elec. Co., 266 S.W.3d 852, 854 (Mo.App.E.D.2008). A motion to dismiss for failure to state a claim upon which relief may be granted is solely a challenge to the adequacy of the plaintiff's petition. Stein v. Novus Equities Co., 284 S.W.3d 597, 601 (Mo.App.E.D.2009). We accept as true all factual allegations asserted in the petition. Id. The petition states a claim if the facts, if proven true, meet the elements of a recognized cause of action. Id. at 602. If the petition fails to allege facts essential to recovery, dismissal for failure to state a claim is proper. Id.

Discussion

I. The trial court erred in dismissing Plaintiffs' action against GML because The Workers' Compensation Law (Chapter 287) as amended in 2005 does not provide the exclusive remedy for injuries by occupational disease, and therefore, GML's affirmative defense of workers' compensation exclusivity...