Asberry v. Bannes-Shaughnessy, Inc., BANNES-SHAUGHNESS

• Decision Date: 21 July 1987
• Docket Number: No. 52157,INC,BANNES-SHAUGHNESS,52157
• Citation: 734 S.W.2d 250
• Parties: James ASBERRY, Plaintiff-Appellant, v.and S.M. Wilson Company, Defendants-Respondents.
• Court: Missouri Court of Appeals

Page 250

734 S.W.2d 250

James ASBERRY, Plaintiff-Appellant, v. BANNES-SHAUGHNESSY, INC. and S.M. Wilson Company Defendants-Respondents.

No. 52157.

Missouri Court of Appeals,

Eastern District,

Division One.

July 21, 1987.

William R. Gartenberg, Aaron S. Dubin, Clayton, for plaintiff-appellant.

Daniel T. Rabbitt, George J. Jeggle, St. Louis, for defendants-respondents.

KELLY, Judge.

James Asberry appeals from an order sustaining the defendants' separate motions for summary judgment. We reverse and remand.

On November 15, 1984, James Asberry was injured while working at a construction site. As he walked to a truck, he slipped on a wet piece of plastic, fell forward and hit the edge of a steel beam. In this fall, Asberry allegedly suffered injury to his shoulder, arm, wrist, hand and nervous system, including a broken arm. He filed a Worker's Compensation claim against his immediate employer, E-M-E, Inc. and received compensation payments.

Subsequently, Asberry filed a negligence claim against Bannes-Shaughnessy, Inc., the general contractor for the project, and S.M. Wilson, Co., the subcontractor of Bannes. Wilson had contracted with E-M-E, Asberry's direct employer, to install reinforcing steel at the construction site.

In Asberry's first amended petition, he alleged that E-M-E was an independent contractor, under contract with Bannes and/or Wilson and that the negligence of the defendants created an unsafe working condition which resulted in his injuries. Both defendants filed motions for summary judgment, asserting the statutory employer defense as a bar to a common law tort action; § 287.040 RSMo 1986. ¹ They contended that E-M-E was not an independent contractor, but rather a subcontractor of Wilson and a sub-subcontractor of Bannes and that this status made them statutory employers. Affidavits and exhibits, including the contract between Wilson and E-M-E, were filed in support of the motions. Asberry filed a memorandum and an affidavit in opposition to defendants' motions. On July 2, 1986, the trial court granted the defendants' motions and entered judgment against Asberry.

Asberry asserts that the trial court improperly granted summary judgment because the defendants failed to establish the statutory employer defense by unassailable proof. Asberry contends that the contracts submitted in support of the motions were not in evidence at the time the court granted the summary judgment and so could not serve as the basis for the decision. He also argues that even if the contracts were properly before the court, summary judgment was inappropriate because the facts necessary to determine statutory employer status were not sufficiently developed.

In response, Bannes and Wilson argue that they have established the statutory employer defense by unassailable proof. They contend that the affidavits and exhibits submitted in support of the motions establish the relationships of the parties as one of statutory employer-employee. As statutory employers, they are immune from a common law tort action by Asberry. Alternatively, they argue that the trial court lacked subject matter jurisdiction over the action. They state that the subject matter jurisdiction argument closely relates to the statutory employer defense: if Asberry is a statutory employee of Bannes and Wilson, his exclusive remedy lies under the Worker's Compensation Act and the trial court may not entertain jurisdiction over the action. They urge this court to treat the motion for summary judgment as a motion to dismiss for lack of subject matter jurisdiction.

Section 287.120 provides that the rights and remedies granted an employee against his employer under the Worker's Compensation Act are exclusive and supplant all other rights and remedies at common law or otherwise. The provision abrogates the original jurisdiction of the courts over actions against the employer for work related injuries if the employer, employee and the accident fall under the Worker's Compensation Act. Shaver v. First Union Realty Management, 713 S.W.2d 297, 298 (Mo.App.1986). Whether or not the case comes within the provisions of the Act is a question of fact. Kemper v. Gluck, 327 Mo. 733, 738, 39 S.W.2d 330, 332 (banc), cert. denied 284 U.S. 649, 52 S.Ct. 29, 76 L.Ed. 551 (1931).

Section 287.040 establishes statutory employer-employee relationships for the purpose of imposing liability upon contractors and subcontractors for injuries suffered by their employees. The purpose of this provision is to protect employees of subcontractors who are not financially responsible and to prevent employers from avoiding liability by hiring independent contractors to perform work their own employees would otherwise perform. Walton v. United States Steel Corp., 362 S.W.2d 617, 622 (Mo.1962). An employee of a subcontractor to a general contractor may fit within the statutory employee classification under the Worker's Compensation Act. Brown v. Gamble Construction Co., Inc., 537 S.W.2d 685, 688 (Mo.App.1976). Where the statutory employer-employee relationship exists, the Worker's Compensation Act applies and a suit at common law is barred. Id. at 620; Green v. Crunden Martin Mfg. Co., 575 S.W.2d 930, 932 (Mo.App.1978).

The burden of pleading and proving this affirmative defense is upon the respondents. Green, supra, 575 S.W.2d at 932. When reviewing the summary judgment, the evidence must be viewed in the light most favorable to the party against whom the judgment was rendered. Johnson v. Givens Real Estate, Inc., 612 S.W.2d 797, 799 (Mo.App.1981).

The proper method for raising the defense of exclusivity of the Worker's Compensation Law is primarily a motion to dismiss for lack of subject matter jurisdiction. Reinagel v. Edwin Cooper, Inc., 688 S.W.2d 375, 376 (Mo.App.1985); Zahn v. Associated Dry Goods Corp., 655 S.W.2d 769, 772 (Mo.App.1983); Shaver, supra, 713 S.W.2d at 299. The question of subject matter jurisdiction can be raised at any time during the proceedings. Parmer v. Bean, 636 S.W.2d 691, 695 (Mo.App.1982). Subject matter jurisdiction is lacking in this case if Asberry could be construed to be a statutory employee.

A motion to dismiss for lack of subject matter jurisdiction is a preliminary question of the court's power to act. Id. A motion to dismiss is appropriate "[w]henever it appears by suggestion of the parties or otherwise that the court lacks" such jurisdiction. Rule 55.27(g)(3). In presenting this motion, the movant bears the burden of demonstrating that the court's exercise of jurisdiction is improper. Shaver, supra, 713 S.W.2d at 299. The burden of proof is not high; it must "appear" by a preponderance of the evidence that the court is without jurisdiction. Zahn, supra, 655 S.W.2d at 772[4-5]. The burden of proof is lower since it is not a decision on the merits, the dismissal is without prejudice and because any action taken by a court lacking subject matter jurisdiction is void. Id. Parmer, supra, 636 S.W.2d at 695.

Before categorizing an individual as a statutory employee, a three part test must be met: 1) the work was performed pursuant to a contract, 2) the injury or death occurred on or about the premises of the statutory employer, and 3) the work performed by the alleged statutory employee must be that which is in the operation of the usual business of the alleged statutory employer. Section 287.040; Green, supra, 575 S.W.2d at 932. All three elements must be present before a finding of statutory employee status is made. Green, supra, 575 S.W.2d at 932.

When considering whether the test has been met, the...