Harman v. Manheim Remarketing, Inc.

• Decision Date: 26 May 2015
• Docket Number: No. SD 33414,SD 33414
• Citation: 461 S.W.3d 876
• Parties: Steve Harman, Plaintiff–Appellant, v. Manheim Remarketing, Inc., Defendant–Respondent.
• Court: Missouri Court of Appeals

461 S.W.3d 876

Steve Harman, Plaintiff–Appellant

v.Manheim Remarketing, Inc., Defendant–Respondent.

No. SD 33414

Missouri Court of Appeals, Southern District, Division Two .

Filed May 26, 2015

Attorney for Appellant: Thomas G. Morrissey, The Morrissey Law Firm, P.C., Springfield, Missouri

Attorneys for Respondent: Lee M. Baty, Karen L. Lloyd, of Baty, Holm, Numrich & Otto, P.C., Kansas City, Missouri

Opinion

GARY W. LYNCH, J.—Opinion author

Steve Harman appeals the trial court's grant of summary judgment in favor of Manheim Remarketing, Inc. (“Manheim”), holding that Harman's civil action against Manheim for his injuries from a fall on Manheim's premises was barred by The Workers' Compensation Law, see sections 287.010–.811. Harman claims that Manheim was not entitled to summary judgment because section 287.280.1,¹ gives him the right to bring a civil action against Manheim if Manheim failed to insure its full workers' compensation liability, as required by that section, and there are no uncontroverted facts in the summary judgment record supporting that Manheim was so insured. We agree, reverse the trial court's judgment, and remand the case for further proceedings consistent with this opinion.

Factual and Procedural Background

Harman filed a personal injury action in the trial court claiming negligence in connection with injuries he sustained as a result of his slip and fall on black ice on Manheim's premises on February 1, 2010, naming Manheim and one of Manheim's employees as defendants.² Manheim answered and asserted various affirmative defenses, including

that pursuant to [section 287.040.1³ ], Manheim is deemed to be the employer of [Harman] and the Missouri Workers' Compensation Act applies to each and every claim asserted against Manheim in [Harman's] Second Amended Petition. As such, the Missouri Workers' Compensation Act provides the exclusive remedy for [Harman's] claims against Manheim.

Thereafter, Manheim filed a motion for summary judgment asserting as its legal basis that Harman's “negligence claim against Manheim fails as a matter of law as Manheim is the statutory employer⁴ of [Harman] ... [t]herefore, [Harman's] exclusive remedy against Manheim is through the Missouri Workers' Compensation Act.” In support of its motion, Manheim alleged seven statements of uncontroverted facts related to it that were all later admitted by Harman. These uncontroverted facts are:

1. At all relevant times, [Harman] was employed by Securitas Security Services USA (“Securitas”) as a security guard at Manheim.

2. Securitas and Manheim entered into a contract for Securitas to provide security guards to protect Manheim's premises 24 hours a day, seven days a week.

3. [Harman] provided the security services to Manheim pursuant to the contract between Manheim and Securitas.

4. [Harman's] alleged injuries occurred on Manheim's premises.

5. At the time of [Harman's] alleged fall, he had already begun his shift as a security guard and had just completed rounds of picking up paperwork from Manheim's various auction lots.

6. [Harman] submitted a worker's compensation claim for his alleged subject injuries.

7. Prior to contracting with Securitas to provide security services, Manheim hired its own security guards to provide the services that Securitas' security guards provided at the time of [Harman's] alleged fall.

In his response, Harman conceded that “he was a statutory employee of Manheim at the time of his fall.” Harman asserted that, nevertheless, because he could “elect to sue Manheim to recover damages for personal injury if Manheim failed to comply with R.S.Mo. § 287.280 by failing to secure workers' compensation insurance that covered Steve Harman[,]” Manheim's motion for summary judgment must be denied due to Manheim's failure to plead and prove that it complied with the insurance requirements of section 287.280.1.

In its reply, Manheim admitted it “was not an insured under Securitas' Workers' Compensation Insurance Policy[,]” that Harman made a workers' compensation claim only against Securitas, and that the Stipulation for Compromise Settlement of that claim lists only Securitas as the employer. Although Manheim did not dispute that it was required under section 287.280.1 to carry workers' compensation insurance, it reasoned that “[n]othing in [section 287.280.1] requires a statutory employer to prove that it provided worker's compensation insurance to be allowed immunity in a civil action pursuant to” section 287.120, in that “[s]ection 287.280 simply states that all employers must carry worker's compensation insurance.”

The trial court granted Manheim's motion for summary judgment and entered judgment in favor of Manheim accordingly. Harman timely appeals that judgment.

In a single point relied on, Harman asserts that “[t]he trial court erred in granting Manheim's Motion for Summary Judgment based upon [Manheim's] affirmative defense of exclusive remedy” pursuant to section 287.120, “because every employer subject to Chapter 287 must purchase insurance[,]” as provided in section 287.280.1, “in order to receive the benefit of the exclusive remedy shield under” section 287.120,⁵ and Manheim produced no uncontroverted fact “that it carried Workers' Compensation Insurance required by R.S.Mo. § 287.280.”

Standard of Review

“Summary judgment is designed to permit the trial court to enter judgment, without delay, where the moving party has demonstrated, on the basis of facts as to which there is no dispute, a right to judgment as a matter of law. Rule 74.04.” ITT Commercial Fin. Corp. v. Mid–A m. Marine Supply Corp., 854 S.W.2d 371, 376 (Mo. banc 1993). “The key to summary judgment is the undisputed right to judgment as a matter of law, not simply the absence of a fact question.” Id. at 380.

When considering appeals from summary judgments, the Court will review the record in the light most favorable to the party against whom judgment was entered. 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. We accord the non-movant the benefit of all reasonable inferences from the record.

Our review is essentially de novo. The criteria on appeal for testing the propriety of summary judgment are no different from those which should be employed by the trial court to determine the propriety of sustaining the motion initially. The propriety of summary judgment is purely an issue of law. As the trial court's judgment is founded on the record submitted and the law, an appellate court need not defer to the trial court's order granting summary judgment.

Id. at 376 (internal citations omitted).

The burden is on the summary judgment movant to establish a right to judgment as a matter of law “flowing from facts about which there is no genuine dispute.” Id. at 378. “The non-movant never needs to establish a right to judgment as a matter of law; the non-movant need only show that there is a genuine dispute as to the facts underlying the movant's right to judgment.” Id. at 382–82.

In reviewing the propriety of the grant of the motion for summary judgment, this court first determines whether the movant is a claimant or a defending party. Id. at 380. “A claimant is one who ‘seeks to recover,’ without regard to whether recovery is sought by claim, counterclaim, cross-claim or declaratory judgment. Rule 74.04(a) .” ITT Commercial Fin. Corp., 854 S.W.2d at 380. “A ‘defending party’ is one against whom recovery is sought. Rule 74.04(b ).” ITT Commercial Fin. Corp., 854 S.W.2d at 380. Here, Harman sought recovery for personal injury against Manheim. Manheim answered and asserted affirmative defenses but did not file a counterclaim or cross-claim. As to Manheim's motion for summary judgment, therefore, Manheim is a defending party and Harman is a claimant.

When the party moving for summary judgment is a defending party, as is the case here, the movant's right to summary judgment can be established by showing one of the following:

(1) facts that negate any one of the claimant's elements facts, (2) that the non-movant, after an adequate period of discovery, has not been able to produce, and will not be able to produce, evidence sufficient to allow the trier of fact to find the existence of any one of the claimant's elements, or (3) that there is no genuine dispute as to the existence of each of the facts necessary to support the movant's properly-pleaded affirmative defense. ⁶

Id. at 381. Manheim's motion, based upon its workers' compensation exclusive remedy affirmative defense barring this civil action, falls within the third category.⁷

“A defendant has the burden to prove all affirmative defenses.” Warren v. Paragon Techs. Group, Inc., 950 S.W.2d 844, 846 (Mo. banc 1997). A defendant may establish a right to summary judgment by showing that there is no genuine dispute as to the existence of the facts required to support its affirmative defense. ITT Commercial Fin. Corp ., 854 S.W.2d at 381. The next consideration, therefore, in this court's determination regarding the propriety of the grant of summary judgment here, is “whether the uncontroverted material facts established [Manheim's] right to judgment as a matter of law.”

Wood v. Copeland, 450 S.W.3d 475, 477 (Mo.App.2014). We determine they do not.

Discussion

“The exclusivity provision of Chapter 287 is found in Section 287.120.” Amesquita v. Gilster–Mary Lee Corp., 408 S.W.3d 293, 299 (Mo.App.2013). Section 287.120 provides, in pertinent part:

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 the employee's 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

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