Distefano v. Saint-Gobain Calmar, Inc.

• Decision Date: 12 August 2008
• Docket Number: No. WD 67541.,WD 67541.
• Citation: 272 S.W.3d 207
• Parties: Marion Michael DISTEFANO, Respondent, v. SAINT-GOBAIN CALMAR, INC., Appellant, Grandview Road Property, L.L.C., Defendant, and William T. Whitlow, Appellant.
• Court: Missouri Court of Appeals

272 S.W.3d 207

Marion Michael DISTEFANO, Respondent, v. SAINT-GOBAIN CALMAR, INC., Appellant Grandview Road Property, L.L.C., Defendant, and William T. Whitlow, Appellant.

No. WD 67541.

Missouri Court of Appeals, Western District.

August 12, 2008.

Motion for Rehearing and/or Transfer to Supreme Court Denied September 30, 2008.

Application for Transfer Denied January 27, 2009.

Paul L. Wickens, Kyle N. Roehler, Thomas R. Larson, Kansas City, MO, for appellants.

Sophie Woodworth, Kansas City, Mo, for respondent.

Before JAMES M. SMART, JR., P.J., LISA WHITE HARDWICK, and JAMES EDWARD WELSH, JJ.

JAMES EDWARD WELSH, Judge.

Marion Michael Distefano sued Saint-Gobain Calmar, Inc. (Calmar), and William T. Whitlow¹ for negligence due to the injuries he suffered while performing work for Calmar on property leased by Calmar. A jury found for Distefano and awarded him $100,000 in compensatory damages. Calmar and Whitlow filed a motion for judgment notwithstanding the verdict with the circuit court, which the circuit court denied. Calmar and Whitlow appeal.² They assert that the circuit court lacked subject matter jurisdiction over Distefano's negligence claim because, pursuant to section 287.040.2, RSMo Cum.Supp. 2007,³ Calmar was Distefano's statutory employer, and, therefore, the case falls within the exclusive jurisdiction of workers' compensation. We disagree and affirm the circuit court's judgment.

Calmar manufactures fluid dispensing systems, such as lotion pumps, liquid soap dispensers, and fine mist sprayers. In 2004, Calmar decided to consolidate its two manufacturing operations into one plant and entered into a lease with Grandview Road Property, L.L.C., for a building in Grandview, Missouri. Calmar took possession of the Grandview property on March 1, 2004. After Calmar took possession and control over the property, it began the process of demolishing and renovating the property to meet its manufacturing needs. Although Calmar hired a general contractor to handle the work for the office portion of the facility, it did not hire a general contractor to supervise and manage the work in the manufacturing portion of the facility.

William Whitlow served as Calmar's Plant Engineer. According to Whitlow, he was responsible for maintenance, construction, construction design engineering, plant development and system's development. In regard to construction, Whitlow described his duties at Calmar as:

I do a lot of the initial design. I work with other architects, engineers of the finalization of design. Then I work with going out and receiving—getting bids for the work, developing scopes of work, getting bids, contractors, subcontractor review, along with other members of our organization. Writing up requisitions for purchase orders, getting contracts and reviewing contracts.

Whitlow also said that it was his job "to develop all the ... infrastructure that was necessary and to develop all the means of transporting the ... water, compressed air, electricity, those things to [the] various ... machines" that Calmar used in its manufacturing process. Whitlow was also responsible for the layout of the plant and the placement of the machines within the facility.

Whitlow reported directly to Calmar's Vice President of Operations, Keith Dempton. In describing Whitlow's role at the renovation of the plant, Dempton said:

We were still working with various potential subcontractors in the final design, so there were measurements being done, there were still design plans to be completed. That, in part, was [Whitlow's] responsibility, to provide—answer questions that the general contractor had in the front offices about location of offices, any questions about rest room facilities and, you know, what we wanted in there. So he was essentially passing on the information relative to design and answering questions about any design changes or any questions that the contractors had.

According to Dempton, Whitlow did not have any supervisory role or management role over anyone doing the construction work.

Calmar hired several outside contractors to perform the demolition and renovation work. Calmar hired Country Club Contractors to remove gas lines, electrical lines, and other fixtures from the Grandview property. County Club Contractors in turn subcontracted with Doc's Painting to remove gas lines and fixtures from the property. Calmar also contracted with American Fire Sprinkler Company to repair or replace old water sprinkler heads in the building.⁴

On June 22, 2004, Larry Boshears and Jamie Baggett, employees of Doc's Painting, used a scissor lift to reach gas lines near the ceiling so that they could cut the pipes. As they cut into one of the gas pipes, a fire erupted. See Boshears v. Saint-Gobain Calmar, Inc., 272 S.W.2d 215 (W.D.Mo. 2008). Distefano, who was working for American Fire Sprinkler, noticed the fire and noticed the men on the scissor lift. Distefano immediately drove a second scissor lift to the fire, raised the lift into the air, and pulled Boshears and Baggett from the burning lift. As a result of his actions, Distefano sustained injuries to his neck, right shoulder, and right arm, and suffered an abdominal burn, chest pains, and post-traumatic stress disorder.

Whitlow assumed the duty to turn off and vent the gas lines at the building during the demolition and renovation. Whitlow admitted that he missed turning off the gas line on which Boshears and Baggett were cutting.

Distefano sued Calmar and Whitlow for negligence, and a jury awarded him $100,000. Calmar and Whitlow filed a motion for judgment notwithstanding the verdict claiming that the circuit court lacked jurisdiction and that workers' compensation was the exclusive remedy available to Distefano. The circuit court did not rule on Calmar's and Whitlow's motion within the time prescribed by Rule 78.06; therefore, the motion was overruled. Calmar and Whitlow appeal from the circuit court's judgment.

Ordinarily, "[t]he determination of whether a case falls within the exclusive jurisdiction of the Workers' Compensation Law is a question of fact that is left to the sound discretion of the trial court." State ex rel. MW Builders, Inc. v. Midkiff, 222 S.W.3d 267, 269 (Mo. banc 2007). When however, "the facts are not in dispute as to the nature of the agreement and the work required by it, the existence or absence of statutory employment is a question of law for the courts to decide." Bass v. Nat'l Super Mkts., Inc., 911 S.W.2d 617, 621 (Mo. banc 1995), cert. denied, 517 U.S. 1208, 116 S.Ct. 1825, 134 L.Ed.2d 930 (1996).

Calmar and Whitlow assert that the facts in this case are not in dispute, and, therefore, we should review this case de novo. We agree that the material facts as to the nature of the agreement between Distefano, American Sprinkler, and Calmar and the work required by the agreement are not in dispute. Distefano contends, however, that he greatly disputes the facts about whether or not Calmar acted as its own general contractor for the demolition and renovation of its facility, and, therefore, we should review the circuit court's determination for an abuse of discretion. Whether or not Calmar acted as its own general contractor for the demolition and renovation of its facility is indeed a dispute between the parties, but it is not a dispute of fact but is a dispute about the application of undisputed facts leading to a conclusion of law. The issue before us is whether or not the facts establish that Calmar was both an owner and a general contractor under circumstances which establish that Calmar was Distefano's statutory employer. Under these circumstances, "the existence or absence of statutory employment is a question of law for the courts to decide." Bass, 911 S.W.2d at 621.

Moreover, although we should resolve the question of jurisdiction in favor of applying the Workers' Compensation Act, we must strictly construe the Act when existing common law rights are affected. Seldomridge v. Gen. Mills Operations, Inc., 140 S.W.3d 58, 61 (Mo.App. 2004). "When there is a close question, the court should lean in favor of retaining the common law right of action." Id.

In their only point on appeal, Calmar and Whitlow assert that the circuit court erred in denying their motion for judgment notwithstanding the verdict.⁵ In particular, they assert that the circuit court lacked subject matter jurisdiction over Distefano's negligence claim because, pursuant to section 287.040.2, Calmar was Distefano's statutory employer, and, therefore, the case falls within the exclusive jurisdiction of workers' compensation. We disagree.

"Section 287.040.1 takes away the common law rights of employees for negligence of certain third parties by defining the third parties as statutory employers, even though they are not actual employers." Looper v. Carroll, 202 S.W.3d 59, 62 (Mo.App.2006). Section 287.040.1 says:

Any person who has work done under contract on or about his premises which is an operation of the usual business which he there carries on shall be deemed an employer and shall be liable under this chapter to such contractor, his subcontractors, and their employees, when injured or killed on or about the premises of the employer while doing work which is in the usual course of his business.

The purpose of the statute is "to prevent employers from circumventing the requirements of the [Workers' Compensation] Act by hiring independent contractors to perform work the employer would otherwise perform." Bass, 911 S.W.2d at 619. Calmar and Whitlow have conceded that section 287.040.1 is not applicable to this case, and it is not.

Section 287.040.2, however, sets forth an exception to the definition of statutory employer for owners of premises where improvements are being erected, demolished, altered, or repaired by an independent contractor. This particular subsection sets forth the allocation of loss for workers' compensation as to property...