Leach v. Board of Police Com'Rs

• Decision Date: 04 November 2003
• Docket Number: No. WD 61913.,No. WD 61914.,WD 61913.,WD 61914.
• Parties: Brenda Kay LEACH, Marissa Renee Leach, and Matthew Leach, Appellants-Respondents, v. BOARD OF POLICE COMMISSIONERS OF KANSAS CITY, Respondent-Appellant, and Westport Security Association and State Treasurer Nancy Farmer, Respondents.
• Court: Missouri Court of Appeals

118 S.W.3d 646

Brenda Kay LEACH, Marissa Renee Leach, and Matthew Leach, Appellants-Respondents, v. BOARD OF POLICE COMMISSIONERS OF KANSAS CITY, Respondent-Appellant, and Westport Security Association and State Treasurer Nancy Farmer, Respondents.

No. WD 61913.

No. WD 61914.

Missouri Court of Appeals, Western District.

November 4, 2003.

Elaine Marie Eppright, Kansas City, for Appellant-Respondent.

Daniel Joseph Haus, Kansas City, for Respondent-Appellant.

Jeremiah W. (Jay) Nixon, Atty. Gen., Jefferson City, Tamara J. Anfang and Shelly Naughtin, Office of Attorney General, Kansas City, and Mark Edward Kelly, Liberty, for Respondent.

PAUL M. SPINDEN, Presiding Judge.

Although James Leach was working jointly for two employers as a police officer and a security officer when he was killed, his dependents want to collect their workers' compensation benefits from only one of the employers. They contend that they are entitled to do so because joint employers are jointly and severally liable and because they will lose the full benefit of Leach's pension if they collect their workers' compensation benefits from the Board of Police Commissioners of Kansas City. The Labor and Industrial Relations Commission erred in deciding that the dependents could not make the election. We, therefore, reverse the commission's decision.

Because Westport Security Association was not insured against workers' compensation claims, allowing Leach's dependents to recover from only Westport Security will result in the public's paying the claim through the Second Injury Fund.¹ State Treasurer Nancy Farmer, whose duties include overseeing the fund, asserts that obligating the fund to pay when the Board of Police Commissioners was self-insured and able to pay the claim is contrary to the General Assembly's intention for the fund. This is a central issue in this case.

Leach's children and others not party to this workers' compensation claim sued Westport Security for their damages arising from Leach's death. He died on May 2, 1992, while working as a security officer in Kansas City's Westport district. A car operated by a drunk driver crashed through barricades and hit him. Leach's dependents alleged that Leach's death resulted from Westport Security's negligence. They settled the suit for $25,000. Leach's dependents received Leach's pension and funeral benefit from Kansas City's police retirement system.

Leach's wife, Brenda, filed a claim for workers' compensation, seeking to recover death benefits on behalf of herself and her children. The commission's administrative law judge, Mark Siedlik, decided that Leach was working only for Westport Security when he was killed and, because Westport Security was not insured, the Second Injury Fund was liable. The fund and Westport Security appealed to the commission. They contended that Westport Security and the board jointly employed Leach. The commission agreed and modified the award accordingly. The commission decided that, because the board was self-insured, the fund was not obligated to pay the claim.

Leach's dependents and the board appeal the commission's decision. The dependents contend that § 287.130² entitles them to elect to recover from either Westport Security or the board. The board does not address the issue of whether or not the dependents have a right to elect between employers but argues more generally that the fund is liable when liability is joint and several and one of the employers is uninsured.

Before reaching the issues that the parties raise, we consider whether Leach was a joint employee of Westport Security and the board when he suffered his fatal injuries or was working only for Westport Security. None of the parties raise the issue, but we consider it, sua sponte, because, if the commission's conclusion that Leach was jointly employed is wrong, the issue presented by the dependents and the board is moot.

Control is the pivotal factor in distinguishing between employees and other types of workers. If the employer has a right to control the means and manner of a person's service—as opposed to controlling only the results of that service—the person is an employee rather than an independent contractor. Seaton v. Cabool Lease, Inc., 7 S.W.3d 501, 505 (Mo.App. 1999). The factors to consider in determining whether or not the requisite right to control exists are: "(1) the extent of control, (2) the actual exercise of control, (3) the duration of the employment, (4) the right to discharge, (5) the method of payment, (6) the degree to which the alleged employer furnished equipment, (7) the extent to which the work is the regular business of the employer, and (8) the employment contract." Phillips v. Par Electrical Contractors, 92 S.W.3d 278, 282 (Mo.App. 2002); State v. Turner, 952 S.W.2d 354, 357 (Mo.App.1997). In cases when these factors do not clearly determine the issue, Missouri's courts have applied the "relative nature of the work" test. This test, recognized in Ceradsky v. Mid-America Dairymen, Inc., 583 S.W.2d 193 (Mo.App. 1979), shifts the focus from the right to control to the economic and functional relationship between the nature of the work and a business' operation. It considers how much skill that a claimant's work requires, how much of a separate calling or enterprise it is, and to what extent the job might be expected to carry its own accident burden. It also focuses on the relation of the job to the employer's business and determines whether the job being performed is continuous or intermittent and whether its duration amounts to the hiring of continuous services rather than a contract for the completion of a particular job. Phillips, 92 S.W.3d at 283; Turner, 952 S.W.2d at 358-59.³

The commission applied both tests to determine that Leach was jointly employed by Westport Security and the board.⁴ The commission, however, misapplied the relative nature of the work test by focusing on the benefit of Leach's services to Westport Security and the board as being sufficient to establish joint employment. The commission said, "Because the Board benefited economically and functionally from its decision to allow [Leach] to serve in the capacity as a [Westport Security] security officer during his off-duty time, the Board shares liability for compensating [Leach's] dependents for his death arising out of and in the course of his work as a [Westport Security] security officer."

The commission relied on Watkins v. Bi-State Development Agency, 924 S.W.2d 18 (Mo.App.1996), to reach this conclusion, but it read Watkins too narrowly. In that case, a car hit a police officer while he was off duty and working for a construction company controlling traffic around a construction area. The court focused on the benefit of the officer's work that both employers gained and concluded that the employers jointly employed the officer. Id. at 21-22. But that focus should not mislead. Although a joint benefit often will flow to both employers from an employee's joint service as it did in Watkins, it will not always. The benefit both employers enjoyed in Watkins, although not highlighted in the court's opinion, resulted from the officer's jointly serving both employers. The construction company hired the officer to direct traffic, but he was also at the construction area to perform his functions as a police officer, which included enforcing traffic ordinances, issuing summonses, and effecting arrests if necessary. Id. at 20. The city would have benefited even had the off-duty officer done nothing but control traffic, but this function did not require a police officer.

The joint benefit—the worker's merely doing something that benefits both employers—is not the key factor in determining whether or not the officer was jointly employed. Instead, it is that his employers enjoyed the benefit resulting from his "joint service"—that is, his doing both employers' work. The joint service in Watkins was traffic control and law enforcement.

That the focus should be on service rendered rather than benefit conferred is reiterated in the definition of joint employment. Joint employment occurs when an employee, under contract with two or more employers and under their simultaneous control, performs for each employer services that are the same or closely related. Patton v. Patton, 308 S.W.2d 739, 748 (Mo.1958); Shurvington v. Cavender Drywall, 36 S.W.3d 432, 436-37 (Mo.App.2001); Stone v. Heisten, 777 S.W.2d 664, 667 (Mo.App.1989). The courts deem the employee to be jointly employed when the employee is hurt or killed while working within the scope and course of his service to the employers. See, e.g., Equity Mutual Insurance Company v. Kroger Grocery and Baking Company, 238 Mo.App. 4, 175 S.W.2d 153, 158-61 (1943), overruled in part on other grounds, Hammons v. Ehney, 924 S.W.2d 843, 847 (Mo. banc 1996); Schultz v. Moerschel Products Company, 142 S.W.2d 106, 107-09 (Mo.App.1940); and Grote v. Monward Realty Company, 232 Mo.App. 189, 96 S.W.2d 660, 661-62 (1936).

Although the commission erred in applying the relative nature of the work test, it reached the correct result. We concur that Leach was jointly serving Westport Security and the board when he suffered his fatal injuries. Leach was providing actual police service to the board while he was working for Westport Security. His work for Westport Security was similar and, in some instances, identical to his work as a police officer. Off-duty officers working for Westport Security served the board by issuing citations and summonses on books provided by the board, making arrests, and responding to calls directly from police dispatch. It does not matter that Leach was "off-duty" in a loose sense of the term. An off-duty officer who is injured or killed while performing the duties of a police officer may still be protected by workers' compensation. Mann v. City of Pacific, 860 S.W.2d 12, 13-17 (Mo.App.1993); Jordan v. St. Louis County...