Crow v. Kansas City Power & Light Co.

• Decision Date: 22 November 2005
• Docket Number: No. WD 64229.,WD 64229.
• Citation: 174 S.W.3d 523
• Court: Missouri Supreme Court
• Parties: Betty CROW, et al., Appellant, v. KANSAS CITY POWER & LIGHT COMPANY, et al., Defendants, Crico of Ethans II and Equity Residential Properties Management Corp.; Mayfield Enterprises, Respondents.

Page 523

174 S.W.3d 523

Betty CROW, et al., Appellant, v. KANSAS CITY POWER & LIGHT COMPANY, et al., Defendants Crico of Ethans II and Equity Residential Properties Management Corp.; Mayfield Enterprises, Respondents.

No. WD 64229.

Missouri Court of Appeals, Western District.

July 5, 2005.

Application for Rehearing and/or Transfer to Supreme Court Denied August 30, 2005.

Application for Transfer Denied November 22, 2005.

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Brian F. McCallister, Kansas City, MO, for appellants.

Paul P. Hasty, Jr., Overland Park, KS, for respondents Crico and Equity.

Kelly Warren, Overland Park, KS, for respondent Mayfield.

Before ROBERT G. ULRICH, Presiding Judge, JAMES M. SMART, JR., Judge and JOSEPH M. ELLIS, Judge.

JOSEPH M. ELLIS, Judge.

Betty Crow, John Dority, and Nevada Dority ("Appellants") are, respectively, the mother and emancipated natural children of John Dority ("Dority"), who died after an uninsulated aluminum ladder he was moving came in contact with an uninsulated 7,000-volt overhead electric power line while he was performing daytime painting work on Unit 9 of an apartment complex known as The Ethans, located at 8300 North Hickory in Kansas City, Missouri. At the time of the accident, which occurred on August 14, 2000, the power line in question was maintained by Defendant Kansas City Power & Light Company ("KCP & L"). Respondent Crico of Ethans II, L.P. ("Crico") owned The Ethans, and Respondent Equity Residential Properties Management Corporation ("Equity Residential") managed the apartment complex for Crico. Dority's employer was Respondent Mayfield Enterprises, a sole proprietorship owned and operated by Jay Mayfield ("Mayfield").

On June 7, 2002, Appellants filed a wrongful death suit against KCP & L, Crico, Equity Residential, Mayfield, and Mayfield Enterprises, alleging that they were all negligent and that their negligence caused or contributed to cause Dority's wrongful death from electrocution. Appellants subsequently settled their claims against KCP & L in exchange for a payment of $210,000, but continued to pursue their claims against the remaining defendants. On June 26, 2003, Mayfield Enterprises moved for dismissal of all claims against it for lack of subject matter jurisdiction, asserting that since Appellants' claims arose out of Dority's on-the-job injuries, Mayfield Enterprises was immune from civil liability to Appellants for Dority's alleged wrongful death under the exclusive jurisdiction provisions of Chapter 287, The Workers' Compensation Law ("WCL").¹ The same day, Crico and Equity Residential moved for summary judgment against Appellants on the basis that they had no duty to eliminate or warn Dority of the danger posed by the overhead power lines located near Unit 9 of The Ethans apartment complex since it was open and obvious as a matter of law. After exhaustive briefing by both parties, the circuit court ultimately granted both motions, leading to this appeal.²

In their first point, Appellants argue that the trial court abused its discretion in granting Mayfield Enterprises' motion to dismiss for lack of subject matter jurisdiction because certain affirmatively negligent acts alleged to have been performed by Mayfield created an exception to the exclusivity provisions of the WCL and because there is also a statutory exception to the exclusive remedy and jurisdiction provisions of the WCL when an employer is alleged to have violated provisions of the Overhead Power Line Safety Act, ("OPLSA"), §§ 319.075 — 319.090.

Section 287.120 governs the determination of when an injury falls under the WCL. In pertinent part, it states:

1. Every employer subject to the provisions of this chapter shall be liable, irrespective of negligence, to furnish compensation under the provisions of this chapter for personal injury or death of the employee by accident arising out of and in the course of his employment, and shall be released from all other liability therefore whatsoever, whether to the employee or any other person....

2. The rights and remedies herein granted to an employee shall exclude all other rights and remedies of the employee, his wife, her husband, parents, personal representatives, dependents, heirs or next kin, at common law or otherwise, on account of such accidental injury or death, except such rights and remedies as are not provided for by this chapter.

Id. The Missouri Supreme Court has held that the WCL was not supplemental or declaratory of any existing rule, right or remedy, but created an entirely new right or remedy which is "wholly substitutional in character and supplants all other rights and remedies, at common law or otherwise." Marie v. Standard Steel Works, 319 S.W.2d 871, 875 (Mo. banc 1959). It provides the exclusive remedy for employees against employers for injuries covered by its provisions, and subject matter jurisdiction over such matters properly lies only in the Labor and Industrial Relations Commission. State ex rel. Taylor v. Wallace, 73 S.W.3d 620, 621 (Mo. banc 2002). Accordingly, "[a] motion to dismiss for lack of subject matter jurisdiction is the proper method to raise as a defense to a tort action the exclusive jurisdiction of the Workers' Compensation Law, as provided in Chapter 287." Sexton v. Jenkins & Assocs., Inc., 41 S.W.3d 1, 3 (Mo.App. W.D.2000).

"In determining the question of its subject matter jurisdiction, the circuit court is not only the arbiter of the law, but the facts necessary to decide the question." Kesterson v. Wallut, 116 S.W.3d 590, 594 (Mo.App. W.D.2003). Thus, whether the subject matter of an action falls within the exclusive jurisdiction of the Labor and Industrial Relations Commission is a question of fact, resolution of which is left to the sound discretion of the trial court. Burns v. Employer Health Servs., Inc., 976 S.W.2d 639, 641 (Mo.App. W.D.1998). Its decision on this question may be "based not only on facts appearing of record, but facts adduced by affidavits of the parties, oral testimony, and depositions." Kesterson, 116 S.W.3d at 595.

"Dismissal for lack of subject-matter jurisdiction is proper whenever it appears, by suggestion of the parties or otherwise, that the court is without jurisdiction." Mo. Soybean Ass'n v. Mo. Clean Water Comm'n, 102 S.W.3d 10, 22 (Mo. banc 2003); Rule 55.27(g)(3). "As the term `appears' [in Rule 55.27(g)(3)] suggests, the quantum of proof is not high; it must appear by the preponderance of the evidence that the court is without jurisdiction." James v. Poppa, 85 S.W.3d 8, 9 (Mo. banc 2002). As applied here, then, if it appears to the trial court by a preponderance of the evidence before it that "the employer, the employee and the accident fall under the Workers' Compensation Law, the case is cognizable by the Labor and Industrial Relations Commission and the Commission's jurisdiction is original and exclusive." State ex rel. J.E. Jones Constr. Co. v. Sanders, 875 S.W.2d 154, 156 (Mo.App. E.D.1994). This "may limit a particular individual's recovery, but it ensures that more individuals enjoy the protection intended by the Workers' Compensation Law." Vatterott v. Hammerts Iron Works, Inc., 968 S.W.2d 120, 121 (Mo. banc 1998).

Where, as here, the facts bearing on the issue are contested, we review the trial court's decision on a motion to dismiss for lack of subject matter jurisdiction for abuse of discretion, Mo. Soybean Ass'n, 102 S.W.3d at 22, rather than under the summary judgment standard. Jones, 875 S.W.2d at 157. Judicial discretion is abused only where "`the trial court's ruling is clearly against the logic of the circumstances then before the court and is so arbitrary and unreasonable as to shock the sense of justice and indicate a lack of careful consideration; if reasonable people can differ about the propriety of the action taken by the trial court, then it cannot be said that the trial court abused its discretion.'" Newman v. Ford Motor Co., 975 S.W.2d 147, 151 (Mo. banc 1998) (quoting Richardson v. State Highway & Transp. Comm'n, 863 S.W.2d 876, 881 (Mo. banc 1993)).

The evidence presented to the trial court on the issue of its subject matter jurisdiction over Appellants' wrongful death claims against Mayfield and Mayfield Enterprises included the following. At the time of the accident, Dority was a full-time employee of Mayfield Enterprises, a Missouri employer subject to the WCL which has been in the business of providing painting services for nearly twenty years. Dority had worked for Mayfield Enterprises for approximately two and a half years and was acting within the course and scope of his employment when the uninsulated aluminum ladder he was carrying came into contact with the overhead power lines in question, which were located approximately fifteen to twenty feet from the rear of Unit 9 of The Ethans apartment complex and were first placed there by KCP & L in March 1989. Mayfield did not know the overhead power lines in question were present until after Dority had been electrocuted, and neither Crico nor Equity Residential had notified Mayfield that overhead power lines were present on the property comprising The Ethans prior to Dority's electrocution. At the time of the accident, Mayfield was not at the work site. Dority, and only Dority, had his hands on the ladder, and he received no assistance with the ladder from anyone. The accident occurred when Dority was walking around to the rear of Unit 9, lost his balance while evidently carrying the ladder in a vertical, upright position, "and somehow backed up and got into the lines." Dority's family filed a claim for death benefits under the WCL, and that claim has already been paid.

On these facts, it is abundantly clear that the trial court did not abuse its discretion in concluding that it lacked subject matter jurisdiction over Appellants' wrongful death claims against Mayfield and Mayfield Enterprises. Appellants nevertheless contend...