Kershaw v. City of Kan. City
| Decision Date | 06 May 2014 |
| Docket Number | No. WD 76864.,WD 76864. |
| Citation | 440 S.W.3d 448 |
| Court | Missouri Court of Appeals |
| Parties | Mark KERSHAW, et al., Appellants, v. CITY OF KANSAS CITY, Missouri, Respondent. |
Patrick B. Starke, Vanessa M. Starke, Blue Springs, MO, Attorneys for Appellants.
Douglas McMillan, Senior Associate City Attorney, Kelly Mills, Assistant City Attorney, Kansas City, MO, Attorneys for Respondent.
Before Division One: JOSEPH M. ELLIS, Presiding Judge, and KAREN KING MITCHELL and ANTHONY REX GABBERT, Judges.
Mark Kershaw, an employee of the City of Kansas City, and his wife, Esther Kershaw, brought a declaratory judgment suit against the City of Kansas City, Missouri, to recover money from the City Legal Expense Fund on an underlying negligence judgment against Mark Kershaw's co-employee, Donald Starr. The Kershaws appeal from the trial court's judgment sustaining the City's motion for summary judgment and denying the Kershaws' motion for summary judgment. The Kershaws raise two points on appeal. First, they contend that the City did not have immunity because: (1) City employee Donald Starr did not have immunity as to the Kershaws' original tort claim; and (2) the City's ordinance establishing the City Legal Expense Fund constitutes an agreement to pay for damages caused by its employees and obviates any immunity for the City. Second, they contend that the City's ordinance covers their claim in that the ordinance compels the City to pay for damages caused to third parties injured by City employees, irrespective of Mark Kershaw's status as a co-employee.
We reverse and remand.
On January 14, 2007, Mark Kershaw (“Kershaw”) was injured in an accident when Donald Starr's vehicle rear-ended Kershaw's vehicle while they were both plowing snow for the City. At the time of the accident, Kershaw and Starr were employees of the City, working in the scope and course of their employment.
On November 8, 2007, Kershaw filed a claim with the State of Missouri Labor and Industrial Relations Commission Division of Workers' Compensation, for his injuries from the January 14, 2007 accident. On November 6, 2009, the City compensated Kershaw for his injuries arising from the accident by way of stipulation for a $129,588.54 settlement, including $64,855.00 for medical expenses, $22,559.94 for temporary disability (lost wages), and a $42,173.60 lump-sum payment for all expenses and injuries.
On August 9, 2010, Mark and Esther Kershaw (collectively “the Kershaws”) filed suit in the Circuit Court of Jackson County, Missouri, against Starr for personal injuries related to the accident. In the personal injury case, Starr was represented by the legal department of the City of Kansas City, Missouri. The Kershaws and Starr negotiated an agreement pursuant to section 537.065 RSMo,1 wherein Starr assigned to the Kershaws any right Starr might have against the City regarding the personal injury suit. Though the City was not a party to this agreement, the agreement was negotiated by the City's attorney on Starr's behalf. On November 15, 2011, the court entered judgment against Starr and in favor of the Kershaws in the amount of $275,000.00. The Kershaws requested that the City pay the judgment, and the City refused.
On February 23, 2012, the Kershaws filed a petition for declaratory judgment against the City, contending that the City denied their request to pay the judgment entered against Starr and requesting that the court find that the City must pay the judgment entered against Starr in the civil case pursuant to section 2–1685 of the Code of Ordinances, City of Kansas City, Missouri (“the Code”).2 The City did not raise any immunity defenses in its answer. Both parties filed motions for summary judgment.
On August 23, 2013, the trial court entered judgment denying the Kershaws' motion for summary judgment and granting the City's motion for summary judgment, finding that the City “did not waive immunity under the Workers' Compensation Statute under City Ordinance Sec. 2–1685(d).”
The Kershaws appeal.
Because “[t]he propriety of summary judgment is purely an issue of law,” we review the grant of summary judgment de novo. ITT Comm. Fin. Corp. v. Mid–Am. Marine Supply Corp., 854 S.W.2d 371, 376 (Mo. banc 1993). “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.
“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.” Id. “We accord the non-movant the benefit of all reasonable inferences from the record.” Id.
“ ‘Generally, an order denying a party's motion for summary judgment is not a final judgment and is therefore not subject to appellate review.’ ” Sauvain v. Acceptance Indem. Ins. Co., 339 S.W.3d 555, 568 (Mo.App.W.D.2011) (quoting Schroeder v. Duenke, 265 S.W.3d 843, 850 (Mo.App.E.D.2008) ). “ ‘However, the denial of a motion for summary judgment may be reviewable when, as in this case, the merits of the motion for summary judgment are intertwined with the propriety of an appealable order granting summary judgment to another party.’ ” Id. (quoting Schroeder, 265 S.W.3d at 850 ).
As a preliminary matter, we briefly summarize the recent history of the law regarding negligence actions brought by employees against co-employees for workplace injuries, such as the one brought by the Kershaws in the underlying suit in this case. We set forth this summary only to illustrate the circumstances in which the underlying suit came to pass and to indicate the parameters of our review in this case.
Before 2005, the exclusive-remedy provision of the Workers' Compensation Act (section 287.120 ) was interpreted to mean that “a co-employee could not be sued [for a workplace accident] unless there was a showing of ‘something more’ than a breach of the employer's duty to provide a safe workplace.” Robinson v. Hooker, 323 S.W.3d 418, 423 (Mo.App.W.D.2010) (quoting State ex rel. Badami v. Gaertner, 630 S.W.2d 175, 180 (Mo.App.E.D.1982) ). In 2005, however, section 287.800 of the Workers' Compensation Act was amended to require strict, rather than liberal, construction. Robinson, 323 S.W.3d at 423. In Robinson, this Court determined that the 2005 amendment meant that co-employees were no longer entitled to invoke employer immunity under section 287.120. Id. at 424. As a result, employees retained “a common law right of action against co-employees who d[id] not fall squarely within the definition of ‘employer.’ ” Id. at 425.
In Hansen v. Ritter, 375 S.W.3d 201, 207 (Mo.App.W.D.2012), we noted that “[alt]hough Robinson abrogated affording immunity under the Act to co-employees alleged to have breached an employer's non-delegable duty, ... Robinson neither created nor defined the rights or remedies of an injured person against co-employees.” Id. Rather, Robinson “merely acknowledged that whatever rights and remedies were available ‘at common law or otherwise’ were not barred by the exclusivity provision of the Act.”Id.
In Hansen, however, this Court was required “to explore the rights and remedies of an injured person against co-employees ‘available at common law.’ ” Id. at 208. While recognizing that Robinson abrogated the prior construction of the exclusive-remedy provision of the Act, we nevertheless acknowledged that “the underlying (and long[-]standing) common law principle that a co-employee owes no duty to fellow employees to perform an employer's non-delegable duties remain[ed] good law.” Id. at 216. In affirming the trial court's judgment, this Court held that “[u]nless a petition asserts a personal duty owed by a co-employee that exists independent of the employer's non-delegable duties, and thus a duty that would exist independent of the master-servant relationship, the petition will not survive a motion to dismiss for failure to state a cause of action for negligence.” Id. at 217. We further noted that “the parameters of a co-employee's common law duties to fellow employees for workplace injuries may be influenced by a 2012 amendment to section 287.120.1 of the Act.” Id. at 217 n. 17. That amendment, which was enacted in response to Robinson, “legislatively afford[ed] immunity to co-employees unless a fellow employee is injured as a result of the co-employee's ‘affirmative negligent act that purposefully and dangerously caused or increased the risk of injury.’ ” Id. (quoting § 287.120.1); see also Shaw v. Mega Indus. Corp., 406 S.W.3d 466, 474 n. 5 (Mo.App.W.D.2013) ().3
The accident that gave rise to the Kershaws' claims against Starr occurred after the 2005 amendment to the Workers' Compensation Act, addressed in Robinson, but before the 2012 amendment to section 287.120, enacted in response to Robinson. On appeal, in their first point relied on, the Kershaws contend that “Starr did not have immunity to [their] original claim” because “[f]or a brief period of history, between Robinson v. Hooker and Hansen v. Ritter, co-employees had no immunity from suit.” In light of our discussion, supra, we do not believe this to be an accurate statement of the law following Robinson.
Our disagreement with the Kershaws' statement, however, is immaterial to the issue before us because the City never claimed in the underlying declaratory judgment action that Starr had any type of immunity from the Kershaws' negligence suit, that Starr was not liable to the Kershaws for negligence under the common law, or that the City was not bound by the trial court's judgment in the underlying negligence suit. “This...
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Kershaw v. City of Kan. City
...440 S.W.3d 448Mark KERSHAW, et al., Appellants,v.CITY OF KANSAS CITY, Missouri, Respondent.No. WD 76864.Missouri Court of Appeals, Western District.May 6, 2014Motion for Rehearing and/or Transfer to Supreme Court Denied June 24, 2014Application for Transfer Denied Sept. 30, Reversed and rem......