Fisher v. Bauer Corp.

• Decision Date: 04 December 2007
• Docket Number: No. ED 89432.,ED 89432.
• Citation: 239 S.W.3d 693
• Parties: Brian FISHER, Plaintiff/Appellant, v. BAUER CORPORATION, Defendant, and Adzick Construction Co., LLC, Defendant/Respondent.
• Court: Missouri Court of Appeals

239 S.W.3d 693

Brian FISHER, Plaintiff/Appellant, v. BAUER CORPORATION, Defendant, and Adzick Construction Co., LLC, Defendant/Respondent.

No. ED 89432.

Missouri Court of Appeals, Eastern District, Division One.

December 4, 2007.

Alan S. Mandel, Michael J. Sudekum, Schlueter, Mandel & Mandel, LLP, St. Louis, MO, for appellant.

Kurtis B. Reeg, James G. Nowogrocki, Lynn Ann Lehnert, Reeg & Nowogrocki, L.L.C., St. Louis, MO, for respondent.

KATHIANNE KNAUP CRANE, Presiding Judge.

Plaintiff, an employee of a subcontractor on a construction project, filed a petition to recover damages from the general contractor for personal injuries he suffered when he fell from a ladder borrowed from the general contractor. He also sought damages for spoliation of evidence. The trial court dismissed the negligence claim for lack of subject matter jurisdiction and dismissed the spoliation claim for failure to state a claim. On appeal from this judgment, plaintiff asserts that the trial court erred in dismissing his negligence claim for lack of subject matter jurisdiction because the general contractor was not a statutory employer under Section 287.120 RSMo (2000)¹, and therefore jurisdiction was not exclusively with the Labor and Industrial Relations Commission (the Commission). He also contends that the trial court erred in dismissing his spoliation claim because a cause of action for spoliation does or should exist in Missouri, and he has pleaded facts sufficient to meet all of the elements of the tort of spoliation if it would be recognized. We affirm.

PROCEDURAL BACKGROUND

On March 28, 2006, plaintiff, Brian Fisher, filed a petition to recover damages on various theories from Bauer Corporation (Bauer) and Adzick Construction Company, LLC (Adzick). He alleged that he was injured while using a ladder manufactured and designed by Bauer and controlled by Adzick. Adzick filed a motion to dismiss four of the five counts against it. Plaintiff did not respond to this motion but voluntarily dismissed Adzick from the four counts, leaving Count V, which alleged that Adzick was negligent in instructing plaintiff to use a defective ladder.

Bauer thereafter filed a motion for summary judgment on the four counts against it. Plaintiff did not respond to this motion but voluntarily dismissed Bauer from the four counts. Adzick then filed a motion to dismiss the remaining negligence count for lack of subject matter jurisdiction on the grounds that Adzick was plaintiff's statutory employer and jurisdiction rested exclusively with the Commission. In support of its motion, Adzick filed the affidavit of its owner, Lance Adzick, a copy of the construction contract between Adzick and U.S. Title Company, Inc. (U.S.Title), a copy of the contract for subcontractor services between Adzick and Welsch Heating and Cooling (Welsch), portions of plaintiff's deposition, and a memorandum of law.

Mr. Adzick averred in his affidavit that Adzick is a general contractor that performs construction and interior remodeling at commercial sites throughout the St. Louis metropolitan area. On a regular and routine basis, Adzick installs and repairs heating and cooling (HVAC) systems as part of its office remodeling work. It also contracts with subcontractors including HVAC subcontractors as part of its usual business to complete the remodeling work. The affidavit and attached exhibits demonstrated that Adzick contracted with U.S. Title to serve as the independent general contractor for an interior remodeling project at 30 Crossroads Plaza, O'Fallon, Missouri 63355. Adzick thereafter entered into a subcontract with Welsch in which Welsch agreed to provide HVAC labor and materials by relocating existing diffusers, replacing filters after construction, and balancing air flow. Welsch's work was to be completed at the U.S. Title site within five days. The affidavit further averred that on August 31, 2005 Adzick was engaged as a general contractor on the U.S. Title site. The U.S. Title offices being remodeled were vacant and not being used by U.S. Title employees or the general public. Adzick had temporary exclusive control over that part of the premises being remodeled. Welsch completed the work at the U.S. Title site and was paid by Adzick for its work. The affidavit additionally averred that if Adzick had not subcontracted with Welsch it would have had to hire regular employees to perform the HVAC work. Adzick also attached to its motion that part of plaintiff's deposition in which he testified that at the time of his injury, he was working as an employee of Welsch at the U.S. Title job site.

In response to Adzick's motion to dismiss, plaintiff filed a memorandum in which he argued that Adzick was not a statutory employer because (1) the job site where plaintiff was injured was not under Adzick's "exclusive control" because other contractors were on the site, and (2) the work performed on the job site was not within Adzick's "usual business."

After a hearing, the trial court took the motion to dismiss under submission and granted plaintiff leave to file an amended petition. The trial court then dismissed the negligence count for lack of subject matter jurisdiction. Plaintiff filed an amended petition in which he realleged the negligence count and added a count in which he sought damages for Adzick's alleged destruction or loss of the ladder, which, he alleged, was "vital" to his claim against Bauer which he had dismissed without prejudice.

Thereafter, Adzick filed a motion to dismiss the spoliation count. The trial court dismissed this count for failure to state a claim and entered a judgment dismissing the petition with prejudice.²

DISCUSSION

I. Lack of Subject Matter Jurisdiction —Negligence Count

In his first point, plaintiff contends that the trial court abused its discretion when it dismissed his negligence claim for lack of subject matter jurisdiction because the work did not occur on Adzick's premises, in that the record did not show that Adzick had exclusive control over the premises, and the work did not occur in the course of Adzick's usual and customary business, in that the record did not show that Adzick was in the business of furnishing defective ladders.³

The appropriate means of raising the Workers' Compensation Law as a defense to a common law tort action is by a motion to dismiss for lack of subject matter jurisdiction. State ex rel. MW Builders, Inc. v. Midkiff, 222 S.W.3d 267, 269 (Mo. banc 2007). The Rules of Civil Procedure require a circuit court to dismiss an action "[w]henever it appears by suggestion of the parties or otherwise that the court lacks jurisdiction of the subject matter." Rule 55.27(g)(3). "`As the term "appears" suggests, the quantum of proof is not high; it must appear by the preponderance of the evidence that the court is without jurisdiction.'" MW Builders, 222 S.W.3d at 269 (quoting James v. Poppa, 85 S.W.3d 8, 9 (Mo. banc 2002)). "The 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." Id. We review only for abuse of discretion. Id. However, when "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." State ex rel. MSX Intern., Inc. v. Dolan, 38 S.W.3d 427, 429 (Mo. banc 2001) (quoting Bass v. National Super Markets, Inc., 911 S.W.2d 617, 621 (Mo. banc 1995)). A factfinder will not be asked to render a factual decision unless the parties disagree about whether the work that caused the injury was work performed under and required by the contract between the alleged statutory employer and the independent contractor or subcontractor. Bass, 911 S.W.2d at 621.

The Workers' Compensation Law provides remedies for on-the-job injuries and death that supplant common law remedies. MW Builders, 222 S.W.3d at 270. Employers subject to the Workers' Compensation Law must furnish compensation to employees for personal injury or death by accident arising out of the course of employment, and they are released from all other liability. Section 287.120.1. The injured employee's rights under the Workers' Compensation Law exclude all other rights and remedies that the employee may have at common law or otherwise. Section 287.120.2.

The legislature adopted section 287.040 "to prevent employers from circumventing the requirements of the Act by hiring independent contractors to perform work the employer would otherwise perform." Bass, 911 S.W.2d at 619. To accomplish this purpose, section 287.040 extends workers' compensation coverage to businesses who have labor performed under contract, or "statutory employers." The Workers' Compensation Law defines a statutory employer as:

1. 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.

Section 287.040.1. Thus, statutory employment exists if (1) the work at the time of injury is being performed pursuant to a contract; (2) the injury occurs on or about the premises of the alleged statutory employer; and (3) the work is performed in the usual course of the alleged statutory employer's business. MW Builders, 222 S.W.3d at 270. In addition, section 287.040.3 provides that an independent contractor is the statutory employer of a subcontractor's employee.⁴ Id.

In this case, plaintiff does not dispute that the work he performed was pursuant to a contract. Rather, he claims that the injury did not occur on Adzick's premises and that the work performed was not in the usual course of Adzick's...