Long v. Interstate Ready-Mix, L.L.C.

• Citation: 83 S.W.3d 571
• Decision Date: 30 April 2002
• Docket Number: No. WD 60170.,WD 60170.
• Parties: Lowell C. LONG, Chris Giller, Deloise A. Giller, Kenneth Head, Ronald Long, Roy Matson, Richard Myers, and Charles D. Webster, Appellants, v. INTERSTATE READY-MIX, L.L.C., and Fru Con Construction Corporation, Respondents.
• Court: Court of Appeal of Missouri (US)

83 S.W.3d 571

Lowell C. LONG, Chris Giller, Deloise A. Giller, Kenneth Head, Ronald Long, Roy Matson, Richard Myers, and Charles D. Webster, Appellants, v. INTERSTATE READY-MIX, L.L.C., and Fru Con Construction Corporation, Respondents.

No. WD 60170.

Missouri Court of Appeals, Western District.

April 30, 2002.

Motion for Rehearing and/or Transfer to Supreme Court Denied July 2, 2002.

Application for Transfer Denied September 24, 2002.

Ronald C. Gladney, St. Louis, for Appellants.

Kimberly F. Lowe, Waynesville, for Respondents.

Before HAROLD L. LOWENSTEIN, P.J., THOMAS H. NEWTON and RONALD R. HOLLIGER, JJ.

THOMAS H. NEWTON, Judge.

Lowell C. Long, Chris Giller, Deloise A. Giller, Kenneth Head, Ronald Long, Roy Matson, Richard Myers, and Charles D. Webster (appellants) appeal from a summary judgment order in favor of Interstate Ready-Mix, L.L.C., and Fru Con Construction Corporation (respondents). Appellants' petition claimed that they were not paid appropriately under the Prevailing Wage Act for certain work performed in relation to a public works project. In granting the respondents' motion for summary judgment, the trial court concluded that the regulation relied upon by the appellants, 8 CSR § 30-3.020, was invalid because it conflicted with § 290.230 of the Prevailing Wage Act.¹ Therefore, the trial court concluded that the appellants had not alleged any facts that entitled them to a judgment as a matter of law. Because 8 CSR 30-3.020(2) does not conflict with § 290.230, the trial court's entry of summary judgment was erroneous and is reversed.

Factual and Procedural Background

Fru Con Construction (Fru Con) contracted with the State of Missouri to build the South Central Correction Center in Licking, Missouri (the Prison Site). The contract provided that the prevailing hourly rate of wages be paid pursuant to § 290.230. The Missouri Division of Labor Standards promulgated Annual Wage Order No. 4 for Texas County, establishing the hourly rate of wages on the public works project.

Interstate Ready-Mix, L.L.C. (Ready-Mix) signed a purchase order with Fru Con and Ready-Mix agreed to deliver concrete to the Prison Site. Ready-Mix's concrete plant was located in St. Robert, Missouri, approximately sixty miles from the Prison Site. Consequently, Ready-Mix leased some land (the Leased Site) from the City of Licking, Missouri, two acres of unimproved real property and erected a batch plant² in order to meet its obligations under the purchase order with Fru Con. The Leased Site was located approximately one mile from the Prison Site, and Ready-Mix leased the property at essentially the same time Ready-Mix signed its purchase order with Fru Con. The land leased by Ready-Mix for the batch plant was neither contiguous nor continuous to the Prison Site. Ready-Mix transported the concrete a distance of three-quarters of a mile from the Leased Site to the Prison Site.

The appellants were employees of Ready-Mix who were not paid at the prevailing wage rate. The appellants performed job duties including: driving and operating a concrete mixer truck from the batch plant to the Prison Site; driving and operating a concrete truck to other businesses in Licking and surrounding areas; maintaining and repairing concrete mixer trucks; working at Ready-Mix's concrete plant in St. Robert, Missouri; and operating the batch plant in Licking, Missouri. Not one appellant performed any actual construction work on the Prison Site. In fact, the purchase order between Fru Con and Ready-Mix specifically excluded Ready-Mix's obligation to install or place concrete on the Prison Site. However, appellants did spend ninety to ninety-five percent of their time transporting concrete from the batch plant to the Prison Site, and almost all of the output of the batch plant was directed to the Prison Site.

The appellants filed a petition against the respondents claiming that they were entitled to the prevailing wage rate for work performed at the batch plant on the Leased Site, and for the delivery of concrete to the Prison Site. The appellants relied upon 8 CSR 30-3.020(2). The respondents filed a motion for summary judgment on the basis that the regulation cited by the appellants should not be enforced because it is in conflict with § 290.230. In granting the respondents' motion, the trial court agreed that a conflict existed and declared 8 CSR 30-3.020 invalid.

This appeal follows.

Standard of Review

The standard of review for a summary judgment is governed by Rule 74.04³ and set out in ITT Commercial Finance Corp. v. Mid-America Marine Supply Corp., 854 S.W.2d 371, 376 (Mo. banc 1993). In reviewing a grant of summary judgment, we examine the entire record to determine whether there is any issue of material fact and whether the moving party was entitled to judgment as a matter of law. Rule 74.04(c)(3); Dial v. Lathrop R-II School Dist., 871 S.W.2d 444, 446 (Mo. banc 1994). We will review the record in the light most favorable to the party against whom summary judgment was entered. ITT Commercial Fin. Corp., 854 S.W.2d at 376. We accord the non-movant the benefit of all reasonable inferences from the record. Id. Because the propriety of summary judgment is purely an issue of law and is founded upon the record, our review is de novo. Id.

Legal Analysis

The Prevailing Wage Act, §§ 290.210-290.340 (the Act) was enacted by the Missouri General Assembly in 1957. City of Kennett v. Labor & Indus. Relations Comm'n, 610 S.W.2d 623, 625 (Mo. banc 1981). Although Missouri courts have not specifically discussed the purpose behind the Prevailing Wage Act, the law appears to be based on, and have a similar purpose to, the federal Davis-Bacon Act, 40 USCA § 276a et seq. (the federal Act), which is designed to ensure that workers on public projects be paid reasonable wages. Henry County Water Co. v. McLucas, 21 S.W.3d 179, 181 (Mo.App. W.D.2000), overruled on other grounds by Div. of Labor Standards, Dep't of Labor and Indus. Relations, State of Mo. v. Friends of the Zoo of Springfield, Mo., Inc., 38 S.W.3d 421, 422-23 (Mo. banc 2001). Thus, the Act was enacted "in the interest of public welfare." Hagan v. Dir. of Revenue, 968 S.W.2d 704, 706 (Mo. banc 1998); see City of Joplin v. Indus. Comm'n, 329 S.W.2d 687, 693-94 (Mo. banc 1959) (stating that the Act as a whole "indicates more than mere local interest"). Due to the remedial nature of the Prevailing Wage Act, we must interpret it broadly so as to accomplish the greatest public good. See Hagan, 968 S.W.2d at 706; see also Envtl. Prot., Inspection, Consulting, Inc. v. City of Kansas City, 37 S.W.3d 360, 369 (Mo.App. W.D.2000) (finding Public Works Prompt Payment Statute, § 34.057, is remedial and requires liberal interpretation).

"Under the Act, all workmen employed by private contractors in the construction of public works must be paid not less than the prevailing hourly rate of wages for work of a similar character in the locality in which the work is performed." City of Kennett, 610 S.W.2d at 625 (citing § 290.230). In particular, "[o]nly such workmen as are directly employed by contractors or subcontractors in actual construction work on the site of the building or construction job shall be deemed to be employed upon public works." § 290.230.1 (emphasis added). The Act's definitional section, § 290.210, does not define "on the site of the building or construction job." However, the Department of Labor and Industrial Relations (the Department) promulgated 8 CSR 30-3.020(2),⁴ which provides an extensive definition:

The term site of the building or construction job means the physical place(s) where the public works are to be constructed, and also means other adjacent or nearby property used by the contractor or subcontractor in that construction which can reasonably be said to be included in the site. Except as otherwise provided in this section, fabrication plants, mobile factories, batch plants, borrow pits, job headquarters, tool yards and the like, are part of the site of the building or construction job provided they are dedicated in a substantial degree to the performance of the public works project, and are so located in proximity to the actual construction location that it would be reasonable to include them. The dedication of seventy-five percent (75%) or more of the output of a fabrication plant, batch plant and the like, to the public works project raises a rebuttable presumption that the facility is part of the site of the building or construction job. The presumption may be rebutted by evidence showing that the facility was established for other legitimate commercial purposes that make the facility useful well after the public works project has been completed. Not included in the site of the building or construction job are permanent home offices, branch plant establishments, fabrication plants and tool yards of a contractor or subcontractor whose location and continuance in operation are determined wholly without regard to a particular public works project. In addition, fabrication plants, batch plants, borrow pits, job headquarters, tool yards and the like, of a commercial supplier or materialman which are established by a supplier of materials for the project before opening of bids and not on the project site are not included in the site of the building or construction job. The permanent, previously established facilities are not a part of the site of the building or construction job, even where the operations for a period of time may be dedicated exclusively, or nearly so, to the performance of a public works project.

8 CSR 30-3.020(2) (emphasis added).

Appellants relied on this regulation in bringing their lawsuit. The trial court, however, found that the regulation conflicts with § 290.230. As it pertains to our particular facts, the trial court found that the appellants were not entitled to the prevailing wage rate based upon a plain reading of § 290.230 because they...