Ducoulombier v. Ford Motor Co.
| Decision Date | 13 April 2021 |
| Docket Number | WD 83430 |
| Citation | 621 S.W.3d 523 |
| Parties | Nancy J. DUCOULOMBIER, Appellant, v. FORD MOTOR COMPANY, Respondent. |
| Court | Missouri Court of Appeals |
Joshua P. Perkins, Kansas City, MO, Counsel for Appellant.
Robert T. Adams, Kansas City, MO, Counsel for Respondent.
Before Division Three: Karen King Mitchell, Presiding Judge, Gary D. Witt, Judge, Anthony Rex Gabbert, Judge
Nancy J. Ducoulombier ("Appellant") appeals the circuit court's Judgment granting Ford Motor Company's ("Ford") motion for summary judgment on Appellant's Petition for Medical Malpractice and Wrongful Death. Appellant contends the circuit court erred in determining that the Division of Workers’ Compensation had exclusive jurisdiction over her claim against Ford. We affirm.
On February 20, 2019, Appellant filed a Petition against Ford and other defendants. The petition alleged that on February 25, 2016, Appellant's husband, Emil Albert Ducoulombier, Jr., was found unresponsive on a work platform at Ford by fellow employee, Jackson Stubbs. Stubbs performed chest compressions. Daniel B. Goodman was the second person to reach the side of Mr. Ducoulombier, and he performed mouth-to-mouth ventilation while Stubbs performed chest compressions. Shawn Newman and Mike Davis, members of the Ford Emergency Response Team, were next to arrive at the scene with an AED device which they utilized on Mr. Ducoulombier twice. At 11:30 a.m., a call was dispatched to Claycomo Fire Department.
While en route, Claycomo Fire Department EMT-Paramedic, Eric Miles, requested mutual aid from Pleasant Valley Fire. Upon arrival at the Ford Plant, Claycomo Fire was met by Ford security and directed to a rendezvous point where they waited for the Ford Emergency Response Team to bring Mr. Ducoulombier to them. When the Emergency Response Team arrived at the rendezvous point, it was several minutes before the Claycomo Fire Department EMT-Paramedics began treatment on Mr. Ducoulombier. EMT-Paramedic Miles and FF/EMT William Wesley Pulse attempted to establish an airway. Thereafter, Pleasant Valley FF/EMT-Paramedic, Steve Winfrey, arrived on the scene with Marc Wachter, CPE, at which point EMT-Paramedic Miles assigned EMT-Paramedic Winfrey the task of establishing an airway.
Paramedic Winfrey performed oral suctioning on Mr. Ducoulombier, revealing several tobacco packets in Mr. Ducoulombier's oropharynx. At the hospital, Mr. Ducoulombier was declared brain dead. Life support was withdrawn and Mr. Ducoulombier died on February 29, 2016.
In Count I of Appellant's petition which alleged "negligence" by Ford, Appellant alleged that Ford employed or utilized Jackson Stubbs, Douglas Skidmore, Daniel Goodman, Shawn Newman, Mike Davis, and other unknown members of their Emergency Response Team. Further, those individuals were at all relevant times agents, servants, and/or employees of Ford directly, or via the doctrine of "apparent agency," and, as such, Ford was vicariously liable for the negligent acts of these individuals.
Appellant further alleged that Ford failed to have properly trained responders for on-site medical emergencies, and failed to ensure that its employees were trained or properly trained in CPR. Also, that Ford failed to equip its employees and Emergency Response Team members with proper equipment and devices to be used in cardiac life support. Additionally, Ford failed to plan for interfacing with community EMS responders for on-site emergencies and, in fact, hindered EMS responders by: 1) Having locked gates preventing emergency responders and vehicles from entering the Ford plant premises, 2) Having slow security clearance for EMS responders and not allowing them to access Mr. Ducoulombier in the plant, 3) Preventing EMS responders from having direct access to Mr. Ducoulombier, and 4) Requiring the EMS responders to wait for an Emergency Response unit/vehicle to carry Mr. Ducoulombier from within the plant to a rendezvous point.
Appellant's petition further alleged that Ford did not provide enough Emergency Response Team members within various areas of the plant, and did not provide the Emergency Response Team members they had with appropriate vehicles to transport injured/ill employees, such as Mr. Ducoulombier, to a rendezvous point. It was additionally alleged that Ford failed to timely notify community EMS responders of the medical emergency and request their assistance in rendering care. Finally, that Ford was "further negligent in various and sundry other respects that are presently unknown to Plaintiff but that Plaintiff verily believes will be revealed during the discovery process." Appellant alleged that, as a direct and proximate result of the carelessness and negligence of Ford, Mr. Ducoulombier died on February 29, 2016.
Approximately two years prior to filing this petition, Appellant had filed a claim for workers’ compensation benefits with the Division of Workers’ Compensation. Therein she alleged that Mr. Ducoulombier, "during the course and scope of his employment, suffered an injury by accident at work that resulted in Employee's death, whereby the workplace event was the prevailing factor in causing Employee's death." On December 28, 2016, Ford filed an "Answer to Claim for Compensation." Therein, Ford admitted "that it was operating under and subject to Missouri workers’ compensation law on 2/25/16," admitted that Mr. Ducoulombier was Ford's employee on that date, but denied "each and every other allegation in the Claim for Compensation." This claim remained pending at the time Appellant filed her petition in the circuit court alleging negligence against Ford.
On April 17, 2019, Ford answered Appellant's petition, generally denying the allegations of negligence. Ford also raised several affirmative defenses, including that "[t]his civil court lacks statutory authority to proceed with this case because Mr. Ducoulombier has a pending case before the Missouri Division of Workers’ Compensation." Ford simultaneously filed a Motion for Summary Judgment on Count I of Appellant's petition on this ground. Ford argued that, Appellant's workers’ compensation claim was still pending with the Commission, and the Commission had yet to resolve the "sole remaining issue" of whether Mr. Ducoulombier's death arose out of and in the course of his employment. Ford contended that the Commission's determination could make Appellant's claim subject only to the workers’ compensation law and disallow the civil action. Because the Commission had not yet decided the issue, the circuit court was prohibited from proceeding with Appellant's civil action pursuant to both the primary jurisdiction doctrine and the doctrine of exhaustion of remedies.
On May 29, 2019, Appellant filed a "Voluntary Dismissal with Prejudice" of her workers’ compensation claim. The Commission subsequently entered an order dismissing the workers’ compensation claim, with prejudice, on June 13, 2019.1
On August 30, 2019, Appellant then filed a response to Ford's Motion for Summary Judgment. Therein she argued that Ford's Motion for Summary Judgment was moot because, while it had been filed at a time when Appellant did have a concurrent workers’ compensation claim pending before the Labor and Industrial Relations Commission, such claim no longer existed. She argued that, Ford's She contended that, having been dismissed with prejudice, "Plaintiff's workers’ compensation claim has been finally adjudicated thereby making Defendant's Motion for Summary Judgment moot." She also noted that, in answer to Appellant's claim for workers’ compensation, Ford denied that Mr. Ducoulombier's death arose out of and in the course and scope of his employment with Ford.
In reply, Ford argued that workers’ compensation law could not be avoided with an election of remedies, and because Appellant dismissed her workers’ compensation claim with prejudice, the Commission could never determine that the alleged injury underlying her claim did not arise out of and in the course of employment, a necessary prerequisite to Appellant being able to proceed with a civil action. Ford reiterated its contention that the action was, therefore, barred by both the primary jurisdiction doctrine and the doctrine of exhaustion of administrative remedies.
On November 8, 2019, the circuit court granted summary judgment in favor of Ford. This appeal follows.
The standard of review for a preserved appeal challenging the grant of a motion for summary judgment is de novo. ITT Com. Fin. Corp. v. Mid-Am. Marine Supply Corp. , 854 S.W.2d 371, 376 (Mo. banc 1993). In such cases, we do not defer to the trial court's decision, but instead use the same criteria that the trial court should have employed in initially deciding whether to grant the motion. Barekman v. City of Republic , 232 S.W.3d 675, 677 (Mo. App. 2007) (internal citations omitted). We review the record in the light most favorable to the party against whom judgment was entered and accord that party the benefit of all inferences which may reasonably be drawn from the record. Id. Summary judgment is appropriate where the moving party has demonstrated, on the basis of facts as to which there is no genuine dispute, a right to judgment as a matter of law. ITT Com. Fin. Corp. , 854 S.W.2d at 376. "Facts set forth by affidavit or otherwise in support of a party's motion are taken as true unless contradicted by the non-moving party's response to the summary judgment motion." Id.
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...clear; and (2) whether a manifest injustice or miscarriage of justice occurred as a result of that error. Ducoulombier v. Ford Motor Co. , 621 S.W.3d 523, 528-29 (Mo. App. W.D. 2021). As noted supra , juveniles are entitled to due process in a certification proceeding, namely a hearing, the......
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... ... miscarriage of justice occurred as a result of that error ... Ducoulombier v. Ford Motor Co. , 621 S.W.3d 523, ... 528-29 (Mo. App. W.D. 2021) ... As ... ...