Barton v. United Parcel Service, Inc.

• Decision Date: 22 December 1992
• Docket Number: No. 61625,61625
• Citation: 842 S.W.2d 951
• Parties: Walter BARTON and Wanda Barton, Plaintiffs/Appellants, v. UNITED PARCEL SERVICE, INC., Mike McAdaragh and Jeff Hall, Defendants/Respondents.
• Court: Missouri Court of Appeals

Page 951

842 S.W.2d 951

Walter BARTON and Wanda Barton, Plaintiffs/Appellants, v. UNITED PARCEL SERVICE, INC., Mike McAdaragh and Jeff Hall Defendants/Respondents.

No. 61625.

Missouri Court of Appeals,

Eastern District,

Division Four.

Dec. 22, 1992.

Matthew J. Padberg, Padberg, McSweeney, Slater & Merz, St. Louis, for plaintiff/appellants.

Gerard Thomas Noce, Evans & Dixon, Mark Joseph Cero, Law Offices of John D. Wendler, St. Louis, for defendants/respondents.

CRANE, Judge.

Plaintiffs, Walter and Wanda Barton, an injured worker and his spouse, appeal the dismissal of their first amended petition against defendants United Parcel Service (UPS) and two of its employees for injuries the worker sustained while installing a conveyor system on UPS's premises. The trial court dismissed for lack of subject matter jurisdiction, finding the worker to be a statutory employee of UPS. We reverse because the pleadings and exhibit on record provide no basis for the trial court's conclusion that the injured worker was a statutory employee of UPS.

In their first amended petition, plaintiffs alleged that worker was employed as an ironworker for Jervis Webb Co. (Webb), which had been hired by UPS to design, manufacture and install a conveyor system on UPS's premises in St. Louis County. They further alleged that UPS and its employees left debris on and around the system which caused worker to fall from a conveyor on which he was working and sustain injuries.

Defendants moved to dismiss on the ground that worker was an employee of a subcontractor of UPS and thus his injuries were covered by Missouri's Workers' Compensation Law. In support of their motion, defendants filed a copy of the contract between UPS and Webb. Under the contract, Webb agreed to design, manufacture and install a complete and operational conveyor system on premises leased by UPS in St. Louis County that would be equal in quality to a system at UPS's Toledo, Ohio facility. Defendants offered no testimony or other documentary evidence in support of their motion to dismiss.

Plaintiffs argue that defendants failed to sustain their burden of proof. We agree.

Ordinarily, when matters outside the pleadings are presented to and not excluded by the trial court, a motion to dismiss shall be treated as one for summary judgment. Rule 55.27; Black Leaf Products Co. v. Chemsico, 678 S.W.2d 827, 829 (Mo.App.1984). However, when the applicability of Missouri's Workers' Compensation Law is raised as a defense to a common law cause of action, "the trial judge must initially treat it as a motion to dismiss for lack of subject matter jurisdiction," regardless of the manner in which it is raised. Parmer v. Bean, 636 S.W.2d 691, 696 (Mo.App.1982). The movant is not required to show by unassailable proof that there is no material issue of fact, rather movant must prove by a preponderance of the evidence that the trial court is without jurisdiction. Id. The trial judge decides only the preliminary question of the court's own jurisdiction, which is not a decision on the merits and is without res judicata effect. DuBose v. Flightsafety Int'l, 824 S.W.2d 486, 488 (Mo.App.1992).

Missouri's Workers' Compensation Law establishes a class of workers known as "statutory employees." § 287.040 RSMo 1986. This section is designed to prevent employers from evading workers' compensation liability by hiring third persons as independent contractors. DuBose, 824 S.W.2d at 488. A worker is a statutory employee if 1) the work was being performed pursuant to a contract, 2) the injury occurred on or about the premises of the alleged statutory employer and 3) when injured, the alleged statutory employee was performing work in the usual course of the alleged statutory employer's business. Id. at 488-89.

An exception to...