Reinagel v. Edwin Cooper, Inc., 48943

• Decision Date: 22 January 1985
• Docket Number: No. 48943,48943
• Citation: 688 S.W.2d 375
• Parties: Michael REINAGEL and Doris Reinagel, Plaintiffs-Appellants, v. EDWIN COOPER, INC., Defendant-Respondent.
• Court: Missouri Court of Appeals

Page 375

688 S.W.2d 375

Michael REINAGEL and Doris Reinagel, Plaintiffs-Appellants, v. EDWIN COOPER, INC., Defendant-Respondent.

No. 48943.

Missouri Court of Appeals,

Eastern District,

Division Three.

Jan. 22, 1985.

Motion for Rehearing and/or Transfer to

Supreme Court Denied March 26, 1985.

Theodore H. Hoffman, St. Louis, for plaintiffs-appellants.

Robert L. Nussbaumer, St. Louis, for defendant-respondent.

KELLY, Judge.

This is an appeal from an order of the Circuit Court of the City of St. Louis sustaining defendant Edwin Cooper, Inc.'s motion to dismiss plaintiff's two count petition for lack of subject matter jurisdiction. For reasons hereinafter stated we affirm.

Michael Reinagel, appellant, (hereinafter "Reinagel") was employed by Columbia Insulation, Inc., as an insulator on November 6, 1980, and commenced his duties at the plant of Edwin Cooper, Inc., (hereinafter "Cooper") at its Sauget, Illinois plant. Cooper is engaged in the business of manufacturing gasoline additives from petroleum products. Reinagel's job concerned insulation of pipes in the plant. On the date aforesaid Reinagel was injured when some hydrogen sulfide gas escaped into a storage shed on the plant premises when he was working and caused him to sustain injuries.

Reinagel and his wife, Doris, instituted a two Count action seeking damages for his injuries in Count I, and damages for her loss of consortium in Count II of the petition. Cooper filed a motion for summary judgment together with supporting affidavits on or about the 22nd day of September, 1983. Thereafter, on or about the 29th day of November, 1983, Cooper filed a motion to dismiss plaintiffs' First Amended Petition for lack of subject matter jurisdiction to which was attached a deposition and the affidavits attached to the previously filed motion for summary judgment. On June 15, 1984, the trial court entered its order sustaining Cooper's motion to dismiss both counts of plaintiffs' First Amended Petition without prejudice because it concluded that Mr. Reinagel was a "loaned employee" of Cooper.

The sole Point on appeal in whether the trial court erred is finding that Reinagel was a "loaned employee" of Cooper.

A motion to dismiss for lack of subject matter jurisdiction is primarily the proper method for raising the exclusivity of the Worker's Compensation Law. Zahn v. Associated Dry Goods, Corp., 655 S.W.2d 769, 772 (Mo.App.1983); Parmer v. Bean, 636 S.W.2d 691, 695 (Mo.App.1982). A court should grant a motion to dismiss for lack of subject matter jurisdiction whenever it "appears" that the court lacks such jurisdiction. Rule 55.27(g)(3). "As the term 'appears' suggests, the quantum of proof is not high. It must appear by the preponderance of the evidence that the court is without jurisdiction. * * * The burden of proof is lower since the dismissal is without prejudice and because any other actions taken by a court without subject matter jurisdiction are null and void." Zahn, supra, 1.c. 772.

The question of the applicability of the Worker's Compensation Law is usually a factual one. Roberts v. Epicure Foods, Co., 330 S.W.2d 837, 840 (Mo.1960),...