Mooney v. Missouri Athletic Club

• Citation: 859 S.W.2d 772
• Decision Date: 29 June 1993
• Docket Number: No. 62995,62995
• Parties: Mary MOONEY and Joseph Mooney, Appellants, v. MISSOURI ATHLETIC CLUB, Respondent.
• Court: Court of Appeal of Missouri (US)

Page 772

859 S.W.2d 772

Mary MOONEY and Joseph Mooney, Appellants, v. MISSOURI ATHLETIC CLUB, Respondent.

No. 62995.

Missouri Court of Appeals,

Eastern District,

Division One.

June 29, 1993.

Motion for Rehearing and/or Transfer to

Supreme Court Denied Aug. 18, 1993.

Application to Transfer Denied Sept. 28, 1993.

Stephen M. Glassman, Clayton, for appellants.

Barbara W. Wallace, St. Louis, for respondent.

CRIST, Judge

Plaintiffs Mary and Joseph Mooney appeal the dismissal of their personal injury suit against Defendant Missouri Athletic Club (MAC) for lack of subject matter jurisdiction. We affirm.

Plaintiff Mary Mooney (Mooney) was employed by Burns International Security Services (Burns), a company which provides security guards to businesses. MAC is an athletic club. At the time of Mooney's injury, Burns had assigned her as security guard for MAC.

On June 14, 1989, Mooney was injured immediately following the completion of her shift at MAC. That evening, she worked from 4 p.m. to 12 a.m. Afterward, she waited at the loading dock on the north side of the MAC building for her husband to pick her up. At approximately 12:15 a.m., Mooney walked across the sidewalk and stepped onto Lucas Street because she mistakenly believed her husband's car was approaching. Upon realizing her error, she stepped directly back onto a manhole cover in Lucas Street. The cover flipped over and she fell into the sewer.

On July 26, 1991, Plaintiffs brought suit against MAC and the City of St. Louis for personal injuries. On July 13, 1992, the City of St. Louis moved for summary judgment because the area of Lucas Street where the accident occurred is not a public street. At this time, Plaintiffs dismissed all counts against City of St. Louis.

MAC then filed its Motion for Summary Judgment. MAC asserted Mooney was its "statutory employee" pursuant to § 287.040.1, RSMo 1986. Therefore, it alleged the Workers' Compensation Act barred Plaintiffs from pursuing a commonlaw negligence action. Attached to the motion was Plaintiffs' petition; one page of an unidentified deposition; a contract for services between MAC and Burns dated February 23, 1990; an affidavit of David Miller, Director of Operational Services at MAC; and a photograph of the scene where the accident occurred. Mooney filed an affidavit in opposition to the motion. The trial court treated MAC's motion as a motion to dismiss for lack of subject matter jurisdiction. It then granted said motion.

Plaintiffs argue on appeal the trial court erred in dismissing their suit for lack of subject matter jurisdiction because Mooney is not a "statutory employee" of MAC and, therefore, the Workers' Compensation Act does not bar their suit.

In determining the burden of proof and standard of review, no problem is created by the apparent inconsistency of the procedural devices employed. While MAC did file a motion for summary judgment, the trial court properly treated it as a motion to dismiss under Rule 55.27 for lack of subject matter jurisdiction. Parmer v. Bean, 636 S.W.2d 691, 696 (Mo.App.1982); see also, Barton v. United Parcel Service, Inc., 842 S.W.2d 951, 952 (Mo.App.1992). Therefore, MAC had the burden of proving by a mere preponderance of the evidence the trial court appeared to lack subject matter jurisdiction. Parmer, 636 S.W.2d at 696. The trial court makes only a decision regarding its own jurisdiction, which is without res judicata effect. Id.; Barton, 842 S.W.2d at 952. Furthermore, the determination of whether the Workers' Compensation Act applies is a question of fact. Parmer, 636 S.W.2d at 695. As such, we review the trial court's decision only for abuse of discretion. Zahn v. Associated Dry Goods Corp., 655 S.W.2d 769, 772 (Mo.App.1983); Parmer, 636 S.W.2d at 696.

Section 287.040.1, RSMo 1986, of the Workers' Compensation Act provides:

Any person who has work done under contract on or about his [or her] premises which is an operation of the usual business which he [or she] there carries on shall be deemed an employer and shall be liable under this chapter to such contractor, his [or her] subcontractors, and their employees, when injured or killed on or about the premises of the employer while doing work which is in the usual course of his [or her] business.

Therefore, for Mooney to be a "statutory employee," three elements must exist: (1) her work was performed under a contract between her employer Burns and MAC; (2) her injury occurred on or about MAC's premises; and (3) when injured, she was performing work in the usual course of MAC's business. McGuire v. Tenneco, Inc., 756 S.W.2d 532, 534 (Mo. banc 1988).

The word "contract" in § 287.040 has been interpreted broadly and includes those contracts which are written or oral, express or implied. McGuire, 756 S.W.2d at 535; see also, Employers Ins. of Wausau v. Patton, 842 S.W.2d 208, 210-11 (Mo.App.1992). The record reveals only two items pertaining to a contract between Burns and MAC. MAC presented a copy of a written contract for security guard services between it and Burns. The copy is dated February 23, 1990, after Mooney's injuries. However, the contract states it is for services rendered from February 26, 1988, before Mooney's injuries. Plaintiffs assert this evidence is not sufficient to show by a preponderance of the evidence that a contract existed between Burns and MAC at the time of Mooney's accident. However, other evidence is indicative of a contract between Burns and MAC. An affidavit of David Miller, Director of Operational Services at MAC, states: "The provision of security guards is necessary, regularly and continuously contracted for...." Mooney's affidavit reveals she was employed by Burns, yet worked exclusively as a desk guard for MAC. For purposes of this statute, it did appear by a preponderance of the evidence a contract existed between MAC and Burns. Otherwise, Mooney would not have been a security guard at MAC.

Plaintiffs also argue Mooney's accident did not occur on or about MAC's premises. For the purpose of § 287.040, Missouri courts have defined premises to mean " 'any place under the exclusive control of the statutory employer where his usual business is being carried on or conducted'...." Huff v. Union Elec. Co., 598 S.W.2d 503, 511 (Mo.App.1980), quoting Boatman v. Superior Outdoor Advertising Co., 482 S.W.2d 743, 745[1-3] (Mo.App.1972). In this case, it was originally alleged Lucas Street on the north side of 405 Washington was a public street. See, Cole v. Town & Country...