Lewis v. Gilmore
| Decision Date | 12 June 2012 |
| Docket Number | No. SC 91834.,SC 91834. |
| Citation | 366 S.W.3d 522 |
| Parties | Staci M. LEWIS, and McCartney M.E. Lewis, a minor, by and through her next friend, Burle Brown, Appellants, DOT Transportation, Inc., Appellant, v. Nathan R. GILMORE and Buddy Freeman, Respondents. |
| Court | Missouri Supreme Court |
OPINION TEXT STARTS HERE
George J. Miller, Michael A. Connon, Miller/Salsbury Law Firm, Eureka, Patrick M. Reidy, Anthony F. Porto III, Monaco, Sanders, Gotfredson, Racine & Barber LC, Kansas City, for the Lewises.
W. James Foland, Scott D. Hofer, Foland, Wickens, Eifelder, Roper & Hofer PC, Kansas City, for Gilmore and Freeman.
The issue in this case is whether a workers' compensation award against an insuredemployer bars a wrongful death claim against an uninsured employer. The circuit court held that a workers' compensation award against the insured employer bars the wrongful death claim against the uninsured employer. The judgment is reversed because section 287.280.1, RSMo 2000, allows an injured party or his or her dependents to proceed in a civil action against the uninsured employer.
Lonnie Lewis died when the tractor trailer in which he was a passenger overturned. The driver of the truck, Nathan R. Gilmore, was operating the tractor trailer in the course of his employment with Buddy Freeman, d/b/a R & F Trucking. Freeman operated his tractor trailer pursuant to a contract with DOT Transportation. Freeman did not carry workers' compensation insurance. DOT did carry workers' compensation insurance.
Staci M. Lewis, Lonnie Lewis' widow, and McCartney M.E. Lewis, filed a claim for workers' compensation against Freeman and DOT. They also filed a wrongful death action against Freeman and Gilmore. The circuit court stayed the wrongful death action until a determination was made by the department of labor and industrial relations as to whether Lonnie Lewis' death occurred out of and in the course of his employment.
An administrative law judge entered an award in favor of Lewis' dependents. The ALJ found that Lewis was an employee of Freeman but that Freeman did not carry workers' compensation insurance even though he legally was required to do so. The ALJ determined that DOT Transportation was Lewis' statutory employer and ordered DOT to pay death and funeral benefits.
After the entry of the workers' compensation award, DOT intervened in the Lewises' wrongful death action. The circuit court granted summary judgment in favor of Gilmore and Freeman, finding that the wrongful death action was barred because the Lewises had made an election of remedies when they obtained a workers' compensation award against DOT. The Lewises and DOT appeal.
When considering an appeal from a summary judgment, an appellate court reviews the record in the light most favorable to the party against whom judgment was entered and affords that party the benefit of all reasonable inferences. ITT Commercial Fin. Corp. v. Mid–Am. Marine Supply Corp., 854 S.W.2d 371, 376 (Mo. banc 1993). “The propriety of summary judgment is purely an issue of law.” Id. The judgment will be affirmed if no genuine issues of material fact exist and the moving party is entitled to judgment as a matter of law. Id. at 380.
Both the Lewises and DOT assert that section 287.280.1 allowed the Lewises to proceed in a civil action against Freeman as a result of his failure to insure his liability under the Missouri workers' compensation laws even though the Lewises obtained a workers' compensation award against DOT. Resolution of this appeal requires an analysis of the plain language of section 287.280.1.
Section 287.280.1 provides:
Every employer subject to the provisions of this chapter shall, on either an individual or group basis, insure his entire liability thereunder, except as hereafter provided, with some insurance carrier authorized to insure such liability in this state, except that an employer or group of employers may themselves carry the whole or any part of the liability without insurance upon satisfying the division of their ability so to do.... If the employer or group of employers fail to comply with this section, an injured employee or his dependents may elect after the injury either to bring an action against such employer or group of employers to recover damages for personal injury or death and it shall not be a defense that the injury or death was caused by the negligence of a fellow servant, or that the employee had assumed the risk of the injury or death, or that the injury or death was caused to any degree by the negligence of the employee; or to recover under this chapter with the compensation payments commuted and immediately payable; or, if the employee elects to do so, he or she may file a request with the division for payment to be made for medical expenses out of the second injury fund as provided in subsection 5 of section 287.220.
The plain language of section 287.280.1 requires certain employers to carry workers' compensation. When an employer does not carry workers' compensation insurance, the injured employee or his dependents “may elect” one of three options. First, the employee or his dependents may elect to file a civil action against “such employer.” The term “such employer” refers to the employer that fails to carry legally required workers' compensation insurance. Second, the employee or his dependents may elect to “recover under this chapter” and pursue a workers' compensation claim. Third, the employee or his dependents may elect to seek payment from the second injury fund.
In this case, the Lewises elected the first option by filing an action against Freeman to recover damages for Lonnie Lewis's death. It is undisputed that Freeman and DOT Transportation are separate entities and that each had the responsibility to secure workers' compensation insurance. Section 287.280.1 provides, “Every employer ... shall ... insure his entire liability[.]” The fact that DOT complied with section 287.280.1 and, therefore, was deemed to be the only statutory employer, does not excuse Freeman from his obligation to carry workers' compensation insurance. To the contrary, the plain language of section 287.280.1 provides that the consequence for an employer's failure to secure workers' compensation insurance is that the employee or his dependents may file a civil action against the employer. This is exactly what the Lewises did. To hold that the Lewises could not file a civil action would take away one of the options that the General Assembly gave an employee to seek redress against an employer who has done nothing to secure workers' compensation insurance for his employees. The plain language of section 287.280.1 gives the employee or his dependents this option.
Freeman asserts that section 287.280.1 must be interpreted in accordance with the election of remedies doctrine. The election of remedies doctrine provides that “if there are two or more inconsistent remedies available, the election to pursue the one is a bar to any suit based upon the other.” U.S. Fidelity & Guar. v. Fidelity Nat'l Bank & Trust, Co., 232 Mo.App. 412, 109 S.W.2d 47, 48 (1937). The purpose of the doctrine is to prevent double redress for a single wrong. Stromberg v. Moore, 170 S.W.3d 26, 30 (Mo.App.2005). Freeman further asserts that Missouri courts apply the election of remedies doctrine to workers' compensation claims without distinction from its application in other areas of law and, as a result, the wrongful death action against Freeman is barred by the Lewises receipt of a workers' compensation award against DOT. See, e.g., Bailey v. McClelland, 848 S.W.2d 46, 48 (Mo.App.1993). This argument is without merit.
First, as established above, the plain language of section 287.280.1 provides that the Lewises “may elect” to file a civil suit against an uninsured employer such as Freeman. That is what the Lewises did in this case.
Second, in cases such as Bailey, the employee or his dependents filed a workers' compensation claim and a civil action against a single uninsured...
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