Goodrum v. Asplundh Tree Expert Co., 73836

• Decision Date: 28 January 1992
• Docket Number: No. 73836,73836
• Parties: Calvin and Mary GOODRUM, Appellants, v. ASPLUNDH TREE EXPERT COMPANY, Respondent.
• Court: Missouri Supreme Court

Page 6

824 S.W.2d 6

Calvin and Mary GOODRUM, Appellants, v. ASPLUNDH TREE EXPERT COMPANY, Respondent.

No. 73836.

Supreme Court of Missouri,

En Banc.

Jan. 28, 1992.

William H. Pickett, David T. Greis, Kansas City, for appellants.

James W. Benjamin, Barbara F. Corbin, Kansas City, for respondent.

Jack W.R. Headley, Thomas A. Ryan, Jeffrey P. Ray, Kansas City, amicus.

RENDLEN, Judge.

Benjamin Goodrum, employed by respondent Asplundh Tree Expert Company as a groundsman, was trimming trees near overhead power lines on July 10, 1986. Before or during this work, Goodrum's foreman, Patrick Lamberton, gave him a substance known as "white cross," and after ingesting that substance Goodrum suffered sunstroke, cardio-respiratory arrest and acute renal failure, resulting in death twenty days later.

Plaintiffs, Goodrum's parents, brought this suit against Asplundh and Lamberton on July 10, 1989, alleging both negligence and intentional tort; in response, Asplundh moved to dismiss for lack of subject matter jurisdiction, insisting the Labor and Industrial Relations Commission had exclusive subject matter jurisdiction under the Worker's Compensation Law, Chapter 287, RSMo 1986, citing as authority Killian v. J & J Installers, Inc., 802 S.W.2d 158 (Mo. banc 1991).

Though the Goodrums countered with a number of constitutional challenges to § 287.120 (as applied in Killian), the trial court granted the motion to dismiss. The constitutional challenges, avoided in Killian because not raised at the first opportunity, 802 S.W.2d at 161 n. 1, bring this cause within the ambit of our exclusive original appellate jurisdiction. Mo. Const. art. V, § 3. These issues include violations of: (1) the open courts provision, Mo. Const. art. I, § 14; (2) the Due Process clause of the Fifth and Fourteenth Amendments of the United States Constitution and Mo. Const. art. I, § 10; (3) the Equal Protection clause of the Fourteenth Amendment of the United States Constitution and Mo. Const. art. I, § 2; (4) the right to trial by jury, Mo. Const. art. I, § 22(a); (5) Mo. Const. art. V, § 14, granting exclusive jurisdiction of all cases and matters to the circuit court; and (6) separation of powers. Mo. Const. art. II, § 1.

Section 287.120 provides:

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 therefor whatsoever, whether to the employee or any other person. The term "accident" as used in this section shall include, but not be limited to, injury or death of the employee caused by the unprovoked violence or assault against the employee by any person.

2. The rights and remedies herein granted to an employee shall exclude all other rights and remedies of the employee, ... parents, ... or next of kin, at common law or otherwise, on account of such accidental injury or death, except such right and remedies as are not provided for by this chapter. (Emphasis added.)

In Killian, the Court held that questions involving whether injuries to an employee resulted from an accident or an intentional act by his employer lie within the exclusive jurisdiction of the Labor and Industrial Relations Commission, and the circuit court was without jurisdiction to determine the issue. 802 S.W.2d at 161. See also Hannah v. Mallinckrodt, 633 S.W.2d 723 (Mo. banc 1982). Here plaintiffs plead an intentional tort by an employer is not an "accident" and is thus beyond the purview of the worker's compensation laws. See Killian, id. at 160; Speck v. Union Electric Co., 741 S.W.2d 280, 281-83 (Mo.App.1987); Risse v. APV Anderson Brothers, 714 S.W.2d 922, 924 (Mo.App.1986); McCoy v. Liberty Foundry Co., 635 S.W.2d 60 (Mo.App.1982); Harryman v. L & N Buick-Pontiac, Inc., 431 S.W.2d 193, 196-97 (Mo. banc 1968). But see Hood v. Trans World Airlines, Inc., 648 S.W.2d 167, 168 (Mo.App.1983); Loughridge v. Overnite Transportation Co., 649 F.Supp. 52 (E.D.Mo.1986); Allen v. Dorothy's Laundry and Dry Cleaning Co., 523 S.W.2d 874, 878-79 (Mo.App.1975) (applying statutory provision that workers' compensation applies to unprovoked violence or assault against employee by any person). See also Wood v. Union Electric Co., 786 S.W.2d 613 (Mo.App.1990) (exclusive jurisdiction over plaintiff's claim for work-related medical expenses is vested in Division of Workers' Compensation, even though plaintiff pleaded intentional tort in withholding payment); Hill v. John Chezik Imports, 797 S.W.2d 528, 531 (Mo.App.1990); and Hollrah v. Freidrich, 634 S.W.2d 221, 223 (Mo.App.1982) (suit against co-employee for intentional tort not excluded by Workers' Compensation Act).

In this case, however, we are not called to determine whether the assault upon Goodrum was an "accident" within the meaning of § 287.120, but to address plaintiffs' constitutional challenges to our conclusion in Killian that the Commission, rather than the circuit court, is to make such a determination. ¹

I. THE ADMINISTRATIVE PROCESS AND JUDICIAL REVIEW

A brief review of the workers' compensation process will set the background for the resolution of this case. If the employer and employee cannot agree on the compensation payable under the Act, either party may apply for a hearing before an administrative law judge, §§ 287.450, 287.460, RSMo 1986, and following an award, either may seek review by the Labor and Industrial Relations Commission. §§ 287.470, 287.480. Under Killian, as stated above, the Commission, rather than the circuit court, has exclusive jurisdiction to determine whether the claimant's injuries were the product of an accident or of an intentional act on the part of the employer. 802 S.W.2d at 161. Upon final award by the Commission, either party may appeal to the appellate court within whose jurisdictional area the accident occurred. § 287.495. ²

Our procedure under Killian follows the doctrine of "primary jurisdiction," and as stated there, in some circumstances courts will not decide a controversy involving a question within the jurisdiction of an administrative tribunal until after that tribunal has rendered its decision. 802 S.W.2d at 160.

II. THE CONSTITUTIONAL CLAIMS

The Open Courts Provision

Missouri Constitution Article I, § 14, provides that "the courts of justice shall be open to every person, and certain remedy afforded for every injury to person, property or character, and that right and justice shall be administered without sale, denial or delay." This Court has said:

The right of access to the courts is said to trace back to the Magna Charta. DeMay v. Liberty Foundry Co., 327 Mo. 495, 37 S.W.2d 640, 645 (1931). It has been held to be an aspect of the right to petition the government contained in the First Amendment to the United States Constitution. California Motor Transport Company v. Trucking Unlimited, 404 U.S. 508, 510, 92 S.Ct. 609 , 30 L.Ed.2d 642 (1972). Most importantly, it is explicitly preserved in the Constitution of Missouri.

State ex rel. Cardinal Glennon Memorial Hospital for Children v. Gaertner, 583 S.W.2d 107, 110 (Mo. banc 1979). However, in construing the constitutional provision, the Court has also stated:

Art. I, § 14 does not create rights, but is meant to protect the enforcement of rights already acknowledged by law. The right of access "means simply the right to pursue in the courts the causes of action the substantive law recognizes."

Mahoney v. Doerhoff Surgical Services, Inc., 807 S.W.2d 503, 510 (Mo. banc 1991) (quoting Harrell v. Total Health Care, Inc., 781 S.W.2d 58, 62 (Mo. banc 1989)). As stated in Blaske, et al., v. Smith & Entzeroth, Inc., et al., 821 S.W.2d 822, 832-833 (Mo. banc 1991), "this Court draws an important distinction between a statute which creates a condition precedent to the use of the courts to enforce a valid cause of action (which violates the open courts provision) and a statute which simply changes the common law by eliminating a cause of action which has previously existed at common law or under some prior statute."

Plaintiffs rely heavily on State ex rel. Cardinal Glennon Memorial Hospital v. Gaertner, 583 S.W.2d 107, 110 (Mo. banc 1979), where this Court invalidated §§ 538.010-.080, RSMo Supp.1976, which had required arbitration of medical malpractice claims before a Professional Liability Review Board (PLRB); if any party rejected the recommendations of the Board, only then could a claimant bring suit in court. We found the statutory provisions violative of Mo. Const. art. I, § 14, because it imposed an unduly burdensome precondition on a litigant's right of access to the courts.

Cardinal Glennon is markedly different from the case at bar, as the arbitration procedure before the PLRB was distinct from the process involved in determining an employer's liability under the Killian rule. The proceedings before the PLRB were potentially meaningless, as the Board's recommendations could be ignored by the parties and were to be given no consideration in any subsequent legal actions. Under Killian, in contrast, the initial decision of the Labor and Industrial Relations Commission whether or not the injury was an "accident" within the meaning of Chapter 287 sets the legal process in motion to examine the worker's claim. If the Commission should determine it has no jurisdiction, the matter may proceed directly to the circuit court. On the other hand, the Commission has exclusive jurisdiction in the first instance as to matters covered by the Workers' Compensation Act, and if the Commission issues an award, judicial review proceeds directly to the appellate courts. We do not believe it can be said the Killian rule delays a claimant's access to the courts, but in contrast, is a step in the disposition of the worker's claim. In distinguishing Cardinal Glennon, this Court...