Page v. Clark Refining & Marketing, Inc., 69097

• Decision Date: 23 July 1996
• Docket Number: No. 69097,69097
• Citation: 930 S.W.2d 33
• Court: Missouri Court of Appeals
• Parties: Dorothy PAGE, Plaintiff-Appellant, v. CLARK REFINING & MARKETING, INC., and Frank Moll, Defendants-Respondents.

Page 33

930 S.W.2d 33

Dorothy PAGE, Plaintiff-Appellant, v. CLARK REFINING & MARKETING, INC., and Frank Moll Defendants-Respondents.

No. 69097.

Missouri Court of Appeals,

Eastern District,

Division Four.

July 23, 1996.

Motion for Rehearing and/or Transfer to

Supreme Court Denied Aug. 28, 1996.

Application to Transfer Denied

Oct. 22, 1996.

David M. Nissenholtz, Cofman, Townsley, Nissenholtz & Weinstein, Michael A. Gross, St. Louis, for Appellant.

William D. Hakes, Thompson & Mitchell, St. Louis, for Respondents.

HOFF, Judge.

Dorothy Page (plaintiff) brought this common law action for the wrongful death of her daughter. Plaintiff's petition alleges her daughter, Almetrius Matthews, was killed while working at a service station managed by Frank Moll and owned by Clark Refining & Marketing, Inc. (defendants). The allegations of negligence were defendants failed to provide adequate security devices and training. Defendants filed a motion to dismiss, arguing plaintiff's exclusive remedy for compensation for the alleged wrongful death of her daughter was under the Workers' Compensation Act. The trial court granted defendants' motion, specifically finding it "[lacked] jurisdiction until such time as the Commission makes a finding that the death was beyond the scope of the Act." This appeal followed.

Plaintiff argues on appeal the Workers' Compensation Act does not apply to the case at bar because non-dependent parents of a deceased employee are not provided "rights and remedies" by the Workers' Compensation Act and are thus excluded.

Section 287.120 RSMo 1994 provides in pertinent part:

1. Every employer subject to the provisions of this chapter shall be liable, irrespective of negligence, to furnish compensation under the provisions of this chapter for personal injury or death of the employee by accident arising out of and in the course of his employment, and shall be released from all other liability therefor whatsoever, whether to the employee or any other person. The term "accident" as used in this section shall include, but not be limited to, injury or death of the employee caused by the unprovoked violence or assault against the employee by any person.

2. The rights and remedies herein granted to an employee shall exclude all other rights and remedies of the employee, his wife, her husband, parents, personal representatives, dependents, heirs or next kin, at common law or otherwise, on account of such accidental injury or death, except such rights and remedies as are not provided for by this chapter.

(emphasis added). Section 287.240 RSMo 1994 provides that if the work-related injury results in death, dependents of the deceased employee are entitled to death benefits and burial expenses. The statute further defines dependent as "a relative by blood or marriage of a deceased employee, who is actually dependent for support, in whole or in part, upon his or her wages at the time of the injury." § 287.240. (4).

In Combs v. City of Maryville, 609 S.W.2d 475, 477 (Mo.App.1980), non-dependent parents brought a wrongful death action for their daughter who died as a result of injuries sustained in the course of her employment. Employer's answer set up the Workers' Compensation Act as a bar to the action, and the trial court sustained its motion to dismiss the parents' petition. On appeal, the parents contended their action was not "provided for" under the Workers' Compensation Act. The Western District, in affirming the decision of the trial court, rejected that contention saying it did not understand "provided for" to refer to only those injuries which are "compensated for" under the Workers' Compensation...