Porter v. Erickson Transport Corp.

• Court: Missouri Court of Appeals
• Writing for the Court: PER CURIAM; CROW
• Citation: Porter v. Erickson Transport Corp., 851 S.W.2d 725 (Mo. App. 1993)
• Decision Date: 13 April 1993
• Docket Number: Nos. 18155,18157,s. 18155
• Parties: Donald PORTER, Plaintiff-Respondent-Appellant, v. ERICKSON TRANSPORT CORP., Defendant-Appellant-Respondent, and U.S. Aluminate Co.--Maryland, Defendant.

Page 725

851 S.W.2d 725

Donald PORTER, Plaintiff-Respondent-Appellant, v. ERICKSON TRANSPORT CORP., Defendant-Appellant-Respondent and U.S. Aluminate Co.--Maryland, Defendant.

Nos. 18155, 18157.

Missouri Court of Appeals,

Southern District,

Division One.

April 13, 1993.

Richard E. McLeod, Grace L. Spezia, The McLeod Law Firm, Kansas City, James W. Newberry, Schroff, Glass & Newberry, Springfield, for appellant/respondent Erickson.

Thomas Strong, Steve Garner, Jeffrey W. Bates, Strong & Associates, Springfield, for respondent/appellant Porter.

Kent O. Hyde, William C. Love, Harrison, Tucker & Hyde, Springfield, for defendant U.S. Aluminate Co.

PER CURIAM.

By a "Contractor Operating and Lease Agreement" signed October 6, 1989, Nikki D. Porter ("Nikki") leased a tractor owned by her to Erickson Transport Corp. ("Erickson"). On November 24, 1989, Nikki's husband, Donald W. Porter ("Plaintiff") was driving the tractor, pulling a tank trailer. Erickson dispatched Plaintiff to U.S. Aluminate Co.--Maryland ("U.S. Aluminate") in Baltimore, Maryland, where liquid sodium aluminate was loaded into the trailer for delivery to a municipal water plant in Delray Beach, Florida.

Plaintiff drove the rig to Delray Beach, arriving the evening of November 26, 1989. While he was unloading the sodium aluminate, some of it got in his eyes, injuring them. Plaintiff sued Erickson and U.S. Aluminate, averring their negligence caused the injury.

One of the defenses pled by Erickson was that Plaintiff's claim "is barred by ... RSMo Chapter 287 because [his] exclusive remedy is workers' compensation benefits." In a pretrial order, the trial court ruled "there would be a separate trial of the employee/workers' compensation issue after the present trial."

A 13-day jury trial of all other issues produced a verdict assessing these percentages of fault: Erickson, 76; Plaintiff, 24; U.S. Aluminate, 0. The jury found Plaintiff's damages, disregarding any fault on his part, to be $3,700,000. From that sum, the trial court subtracted $100,000 received earlier by Plaintiff in settlement with the City of Delray Beach. The trial court further subtracted $864,000 for Plaintiff's percentage of fault, then added prejudgment interest of $225,326.42 per § 408.040.2, RSMo Supp.1987. Total: $2,961,326.42.

The trial court entered judgment for Plaintiff against Erickson in that amount, and against Plaintiff on his claim against U.S. Aluminate.

Afterward, the trial court granted a motion by Plaintiff for summary judgment on Erickson's "workers' compensation" defense. The trial court found Plaintiff was neither a regular employee of Erickson within the meaning of § 287.120, RSMo 1986, nor a statutory employee of Erickson within the meaning of § 287.040, RSMo 1986.

Erickson brings appeal 18155 from (a) the judgment against it on the verdict, and (b) the order granting Plaintiff's motion for summary judgment.

Plaintiff's petition contained a count seeking punitive damages from Erickson. At the close of Plaintiff's evidence in the jury trial, the trial court directed a verdict against Plaintiff on that issue. Plaintiff brings appeal 18157 challenging that ruling.

We consolidated the appeals, but address them separately in this opinion.

Appeal 18155

Erickson's brief presents six points. The first five pertain to the jury trial. The sixth, which we address first, avers the trial court wrongly granted Plaintiff's motion for summary judgment on Erickson's "workers' compensation" defense.

Erickson makes two contentions in support of the point, designating them "A" and "B." Contention "A" avers the trial court erroneously found there was no material issue of fact as to whether Plaintiff was an employee of Erickson or an independent contractor when he was injured.

The agreement referred to in the first sentence of this opinion designates Erickson as "Carrier" and Nikki as "Contractor." It provides, in pertinent part:

[s] 1. ... Contractor represents that he is the owner of such equipment. Contractor shall provide receipt of payment of Federal Highway Use Tax, and a copy of title or title registration.

[s] 2. ... This lease shall commence on the date of this Agreement and shall remain in effect until terminated as provided herein, or until January 31st of the following year.

[s] 3. ... For the full and proper performance of each trip made by the Contractor in accordance with this Agreement, Carrier agrees to pay to Contractor 73 percent of the Carrier's gross revenue earned.

....

[s] 5. ... Contractor agrees to use the Equipment (together with drivers and all other necessary labor) to transport, load and unload on behalf of Carrier, or on behalf of such other certified carriers as Carrier may designate through authorized "trip lease" or interchange agreements, such commodities as Carrier may make available to Contractor....

[s] 6. ... Contractor shall not trip lease the equipment listed herein to any other carrier, or person without first having obtained specific written approval to do so from Carrier....

[s] 7. ... Contractor shall be responsible to Carrier for satisfying all applicable State and Federal regulatory requirements and statutes, subject at all times to verification by the Carrier. To discharge such responsibility Contractor shall perform the following duties:

....

C. Contractor shall hire only those drivers who are qualified under all applicable regulations and statutes. Contractor shall permit Carrier to screen, test and obtain necessary paper work as is required by all applicable regulations for all persons who are to operate the vehicle.

....

[s] 9. ... It is specifically understood and agreed that Contractor, its drivers and/or helpers are not agents, employees or servants of the Carrier. Contractor agrees and it is understood by the parties that Contractor is an independent Contractor who shall select his own drivers subject to the processing and qualification requirements established herein and the Contractor shall determine the manner in which those drivers shall be compensated. Contractor hereby agrees to comply with the provisions of the Fair Labor Standard Act, Workman's Compensation laws, Social Security, Income Tax Withholding requirements and Unemployment Compensation laws which may be applicable to himself and his employees. The Carrier shall not be responsible for the wages and expenses of Contractor's employees, agents or servants. Contractor shall hold Carrier harmless from any liability arising from a relationship between Contractor and any of Contractor's employees, agents or servants whether under industrial accident laws, workman compensation laws, or other state or federal laws applicable to employers and employees. Contractor shall maintain workman compensation coverage for the Contractor and any employee, agent or servant whom Contractor employs in the performance of this agreement. In addition, Contractor shall withhold state and federal income taxes, social security, unemployment insurance and other payroll taxes upon the wages paid by Contractor to Contractor's employees. Contractor shall be and is responsible for selecting, purchasing, financing and maintaining its equipment. Contractor is responsible for selecting all routes, except for loads requiring state or local permits where the governmental agency will establish the route over which he must travel.

....

[s] 11. ... Contractor agrees to pay for all operating expenses in any way relating to or connected with the Equipment, including without limitation, all expenses of fuel, oil, fuel taxes, maintenance, service, materials and repairs, and to pay all privilege taxes, inspection fees, and any other taxes, fees and charges assessed by any taxing or governmental authority on the Equipment, including but not limited to, road tolls, ferries, mileage taxes, Federal use taxes, fuel taxes, registration fees, prorate license fees, ad valorem personal property taxes, ... permits or any other levies or assessments based upon the use and operation of the Equipment....

....

[s] 17. ... Contractor shall maintain in full force and effect Workmen's Compensation Insurance on the Contractor and Contractor's employees while performing lawful and proper duties under this agreement....

....

[s] 24. ... Either party shall have the right to cancel this Agreement at any time on notice to the other party. Termination in such cases, unless otherwise specified in the notice, shall be effective in thirty (30) days, unless otherwise terminated as hereinafter provided. In the event of insolvency, receivership or bankruptcy of Contractor, Carrier shall have the right to cancel and terminate this Agreement without notice, and Carrier may terminate this Agreement and without notice in the event of any breach or failure to comply by Contractor with any term of this Agreement....

Because Erickson hauls liquids in bulk, tractors leased to it must be equipped with a pump. When Erickson leases a tractor lacking a pump, the custom is that Erickson buys one and sells it to the lessor. The lessor has the option of hiring one of Erickson's mechanics to install the pump, on the latter's own time, or having the pump installed elsewhere.

Nikki's tractor lacked a pump. Erickson bought one, and it was installed on Nikki's tractor by an Erickson mechanic. The cost was to be deducted from Erickson's payments to Nikki.

The pump had a pressure relief valve, a safety device that prevents excessive pressure from building up if a hose becomes clogged while the pump is operating.

As Plaintiff was unloading the sodium aluminate at Delray Beach, the pump began to "whine." When Plaintiff stooped to examine it, the hose "blew up" and sodium aluminate struck him in the face, entering his eyes. Plaintiff's evidence showed this occurred because the pressure relief valve had been installed "upside down."

Erickson asserts there are fact issues which, if resolved favorably to it, support a...