Halsey v. Townsend Corp. of Ind.

• Decision Date: 21 December 2021
• Docket Number: No. 18-2908,18-2908
• Citation: 20 F.4th 1222
• Parties: Andrew HALSEY ; Tammy Kennedy, Plaintiffs - Appellants v. The TOWNSEND CORPORATION OF INDIANA, doing business as Townsend Tree Service; Jeffrey Alan Richardson; Townsend Tree Service Company, LLC, Defendants - Appellees
• Court: U.S. Court of Appeals — Eighth Circuit

20 F.4th 1222

Andrew HALSEY ; Tammy Kennedy, Plaintiffs - Appellants

v.The TOWNSEND CORPORATION OF INDIANA, doing business as Townsend Tree Service; Jeffrey Alan Richardson; Townsend Tree Service Company, LLC, Defendants - Appellees

No. 18-2908

United States Court of Appeals, Eighth Circuit.

Submitted: September 25, 2019

Filed: December 21, 2021

Sean M. Brown, Kirk Rowan Presley, Presley & Presley LLC, Kansas City, MO, for Plaintiffs - Appellant Andrew Halsey.

Sean M. Brown, Kirk Rowan Presley, Presley & Presley LLC, Kansas City, MO, C. H. Parsons, Jr., Dexter, MO, for Plaintiffs - Appellant Tammy Kennedy.

Matthew W. Geary, Dysart & Taylor, Kansas City, MO, Defendants - Appellees The Townsend Corporation of Indiana, Townsend Tree Service Company, LLC.

Justin S. Chapell, Elizabeth S. Silker, Teresa Michelle Young, Brown & James, Saint Louis, MO, for Defendant - Appellee Jeffrey Alan Richardson.

Before BENTON, SHEPHERD, and GRASZ, Circuit Judges.

BENTON, Circuit Judge.

Tyler S. Halsey suffered a heat stroke

while working for Townsend Tree Service Company, LLC, under the supervision of Jeff A. Richardson. Andrew Halsey and Tammy Kennedy, Tyler's parents, sued for wrongful death and negligence. The district court¹ dismissed the claims against Richardson with prejudice, dismissed the claims against Townsend Tree without prejudice, and granted summary judgment to the parent company, The Townsend Corporation of Indiana. Halsey appeals. Having jurisdiction under 28 U.S.C. § 1291, this court affirms.

I.

Halsey worked for Townsend Tree for four days, on a road crew trimming trees. Richardson, his supervisor, was responsible for overseeing the work and safety of the crew members. On July 22, 2016, the temperature reached 96 degrees. The parents allege that Halsey was especially susceptible to heat stroke

due to his physical condition and inexperience working outside in the heat. Near the end of his shift, Halsey collapsed. He was taken to a hospital, treated for heat stroke, and passed away the next day.

The parents sued Townsend Corporation and Richardson in state court. The Corporation removed the case to federal court. The parents are both Missouri citizens. The Corporation is an Indiana citizen. Richardson is also a Missouri citizen. The Corporation alleged that the parents fraudulently joined him to defeat diversity. The parents filed a motion to remand. The district court denied it. It found no colorable claim against Richardson, dismissing him with prejudice.

The district court then substituted Townsend Tree for Townsend Corporation as Halsey's employer. The parents amended their complaint naming both of them. Both defendants moved for summary judgment. The district court eventually dismissed Townsend Tree, to allow proceedings before the Missouri Labor and Industrial Relations Commission. The court granted Townsend Corporation's motion for summary judgment, ruling it did not completely supplant Townsend Tree's duty to provide a safe working environment. Halsey v. Townsend Corp. of Indiana , 2018 WL 3993983, at *4 (E.D. Mo. Aug. 21, 2018).

II.

The parents argue that the district court should have remanded this case because they made a colorable claim that supervisor Richardson is liable for Halsey's heat stroke

. This court reviews de novo a denial of a motion to remand. In re Prempro Prods. Liab. Litig. , 591 F.3d 613, 619 (8th Cir. 2010). Subject matter jurisdiction under 28 U.S.C. § 1332 requires complete diversity, if no defendant has citizenship in the same state with any plaintiff. Id. at 620. A frivolous or illegitimate claim against a non-diverse defendant—a fraudulent joinder—does not prevent removal. See

id.

A defendant alleging fraudulent joinder must prove that the plaintiff's claim against the diversity-destroying defendant has "no reasonable basis in fact and law." Filla v. Norfolk S. Ry. Co. , 336 F.3d 806, 810 (8th Cir. 2003). "Where applicable state precedent precludes the existence of a cause of action against a defendant, joinder is fraudulent." Id. Joinder is not fraudulent if state law might impose liability on the resident defendant under the facts alleged. Id. Doubts about federal jurisdiction are resolved in favor of remand to state court. Prempro , 591 F.3d at 620.

The parents argue they have asserted a reasonable basis for co-employee liability under the Missouri Workers' Compensation Law. See Gray v. FedEx Ground Package Sys., Inc. , 799 F.3d 995, 999 (8th Cir. 2015) (noting Missouri substantive law governs a diversity suit). The Workers' Compensation Law applicable here is:

Any employee of such employer shall not be liable for any injury or death for which compensation is recoverable under this chapter and every employer and employees of such employer shall be released from all other liability whatsoever, whether to the employee or any other person, except that an employee shall not be released from liability for injury or death if the employee engaged in an affirmative negligent act that purposefully and dangerously caused or increased the risk of injury.

§ 287.120.1 RSMo (eff. Jan. 1, 2014 to Aug 27, 2017). This subsection does not create a new cause of action for an injured employee to sue a co-employee. Rather, this subsection is an affirmative defense, granting co-employees broad immunity unless the worker can show that the co-employee engaged in "an affirmative negligent act" that "purposefully and dangerously caused or increased the risk of injury." See Brock v. Dunne , ––– S.W.3d ––––, ––––, 2021 WL 5217031, at *3 (Mo. banc Nov. 9, 2021), quoting § 287.120.1 RSMo ("Section 287.120.1 does not preempt the common law claim and create a new statutory cause of action for co-employees to bring against their culpable co-workers. Instead, as a workers' compensation statute, it provides immunity to co-employees and employers unless the statutory exception applies.").

This creates a two-part analysis. First, has the co-employee engaged in an affirmative negligent act that purposefully and dangerously caused or increased the risk of injury to the injured employee so as to deny that co-employee immunity? If so, has the injured employee made allegations that otherwise establish a claim of common law negligence for a breach of a duty independent of the employer's nondelegable duty?

The parties focus on whether there was an affirmative act that satisfies the first part. Like the recent Missouri Supreme Court case of Brock v. Dunne , "there is no direct evidence demonstrating" that Richardson "acted with the purpose to cause or increase the risk of injury, and any inference he did so would be ‘unreasonable, speculative or forced.’ " Id. at ––––, 2021 WL 5217031, at *5.

The parents also failed to allege the second part, a claim of common law negligence for a breach of a duty independent of the employer's nondelegable duties. In Missouri, injured employees are "barred from bringing common law negligence actions against a co-employee when the co-employee was performing a nondelegable duty owed by the employer." McComb v. Norfus , 541 S.W.3d 550, 555 (Mo. banc 2018). An employer owes nondelegable duties to its employees with respect to safety, even if the employer assigns the duties to employees. Peters v. Wady Industries, Inc. , 489 S.W.3d 784, 795 (Mo. banc 2016). These duties include (1) to provide a safe place to work; (2) to provide safe appliances, tools, and equipment for work; (3) to give warning of dangers of which the employee might reasonably be expected to remain in ignorance; (4) to provide a sufficient number of competent fellow employees; and (5) to promulgate and enforce rules for the conduct of employees which would make work safe. Id.

According to the Missouri Supreme Court, a co-employee is liable for breaching a duty separate and distinct from the employer's nondelegable duties, but only if the co-employee either breaches a duty unrelated to the master-servant relationship, or commits a "breach of workplace safety that was so unforeseeable to the employer as to take it outside the employer's nondelegable duty to provide a reasonably safe workplace." Conner v. Ogletree , 542 S.W.3d 315, 324 (Mo. banc 2018). See also McComb , 541 S.W.3d at 556 ; Fogerty v. Armstrong , 541 S.W.3d 544, 548 (Mo. banc 2018).

In this case, the parents do not meet this standard, because they do not allege that Richardson breached a duty separate and distinct from the nondelegable duties of Townsend Tree. The parents stress two allegations: (1) that Richardson directed Halsey to continue working despite indications of heat exhaustion

, and (2) that Richardson disabled the air conditioning in the work trucks so Halsey could not escape the heat. Under Missouri law, both allegations are within Townsend Tree's nondelegable duties to provide a safe workplace and equipment.

As for the first allegation, the closest case is the McComb case. There, a delivery driver was killed when his vehicle skidded off the road during a severe winter storm. McComb , 541 S.W.3d at 553. Two supervisors knew of the severe storm when directing the driver to drive his route. The driver told the supervisors during his drive that his windshield was freezing. Id. Despite the risks of driving in a winter storm, the supervisors told him to continue as scheduled. Id. The Missouri Supreme Court found that the supervisors' decision to keep him on his route related to the employer's nondelegable duty to provide a safe workplace. Id. at 557. The court stressed that "the risks associated with driving a delivery vehicle in a region that experiences dangerous weather conditions are reasonably foreseeable to employers." Id. The court stated that it was reasonably foreseeable that a supervisor would be negligent in directing a driver to remain on the road in dangerous weather conditions. Id.

Like in McComb , the risks of working outside in the July heat are foreseeable. Halsey's job included working outside for ten hours a day, often during the hottest part of...