Sexton v. Jenkins And Associates

• Decision Date: 03 October 2000
• Citation: 41 S.W.3d 1
• Parties: (Mo.App. W.D. 2000) . Kevin Dale Sexton, Appellant, v. Jenkins and Associates, Inc., Steve Sloniker, Kent Lacy, Howard Hurlburt, and Other Unknown Persons, Companies and Entities, Respondents. Case Number: WD57996 Missouri Court of Appeals Western District Handdown Date:
• Court: Missouri Court of Appeals

41 S.W.3d 1 (Mo.App. W.D. 2000)

This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court.

Kevin Dale Sexton, Appellant, v. Jenkins and Associates, Inc., Steve Sloniker, Kent Lacy, Howard Hurlburt, and Other Unknown Persons, Companies and Entities, Respondents.

Case Number: WD57996

Missouri Court of Appeals Western District

Handdown Date: 10/03/2000

Appeal From: Circuit Court of Henry County, Hon. William J. Roberts

Counsel for Appellant: Andrew J. Gelbach

Counsel for Respondent: John R. Loss

Opinion Summary:

A subcontractor's employee appealed a judgment dismissing his petition for damages for personal injuries for lack of subject matter jurisdiction. The trial court dismissed his petition based on its finding that his exclusive remedy for injuries he sustained was under the Workers' Compensation Law.

AFFIRMED.

Court holds:

(1) The contractor is the statutory employer of the subcontractor's employee.

(2) The employee failed to plead any affirmative acts which amounted to "something extra" beyond the contractor's duty to provide a safe workplace.

(3) Section 287.040.4 did not remove the contractor's civil immunity.

Opinion Author: Harold L. Lowenstein, Judge

Opinion Vote: AFFIRMED. Stith and Newton, JJ., concur.

Opinion:

Kevin D. Sexton appeals from a judgment dismissing his petition for damages for personal injuries for lack of subject matter jurisdiction. The court dismissed Sexton's petition based on its finding that Sexton's exclusive remedy, for injuries he sustained, was under the Workers' Compensation Law. The respondents are Jenkins & Associates (Jenkins), the general contractor of the construction project, and several of Jenkins' employees. Sexton was an employee of a subcontractor. Because this court finds that (1) Jenkins & Associates is the statutory employer of Sexton; (2) Sexton failed to plead any affirmative acts which amount to "something extra" beyond Jenkins' duty to provide a safe workplace; and (3) Section 287.040.4 did not remove Jenkins' civil immunity, the judgment of the trial court is affirmed.

FACTS

Jenkins entered into a written contract with Kansas City Power & Light (KCPL) to construct an addition and office building at KCPL's Montrose Power Plant. Under the terms of the contract, Jenkins was to act as the independent general contractor of the construction project. Jenkins subcontracted with Intec Construction Company (Intec) to perform the concrete flat work. Sexton was employed by Intec as a concrete mason.

In March of 1993, while working on the project at the Montrose Power Plant, Sexton fell down an elevator shaft after a railing gave way. As a result of his injuries, Sexton filed a claim for workers' compensation against Intec. That claim is still pending. Sexton later filed the petition under review here in the circuit court against Jenkins, Steve Sloniker, an employee of Jenkins and the supervisor on the project, Howard Hurlburt, an employee of Jenkins and a carpenter on the project, and Kent Lacy, an employee of Jenkins and a laborer on the project. The petition alleged that Jenkins and the individuals negligently breached their duty to guard and protect the elevator shaft. Respondents filed a motion to dismiss Sexton's petition for lack of subject matter jurisdiction alleging that his exclusive remedy was under the Workers' Compensation Law. The trial court granted Respondents' motion and entered its judgment dismissing Sexton's petition.

STANDARD OF REVIEW

The Workers' Compensation Law provides for the exclusive rights and remedies of injured workers. Section 287.120.¹ A motion to dismiss for lack of subject matter jurisdiction is the proper method to raise as a defense to a tort action the exclusive jurisdiction of the Workers' Compensation Law, as provided in Chapter 287. Burns v. Employer Health Services, Inc., 976 S.W.2d 639, 641 (Mo. App. 1998). A motion to dismiss should be granted when it appears that the trial court lacks subject matter jurisdiction. James v. Union Electric Co., 978 S.W.2d 372, 374 (Mo. App. 1998). "'As the term "appears" suggests the quantum of proof is not high.'" Burns, 976 S.W.2d at 641 (quoting Parmer v. Bean, 636 S.W.2d 691, 694 (Mo. App. 1982)). The party raising the defense must show by a preponderance of the evidence that the trial court is without subject matter jurisdiction. James, 978 S.W.2d at 374. In determining whether it has jurisdiction, the trial court may consider affidavits, exhibits, and evidence pursuant to Rules 55.27 and 55.28. Burns, 976 S.W.2d at 641.

The determination of whether a case falls within the exclusive jurisdiction of the Workers' Compensation Law is one of fact. Id. When a court's jurisdiction depends on a factual determination, the decision should be left to the sound discretion of the trial judge. Id. Thus, this court's review is for an abuse of discretion. Id. "The trial court abuses its discretion when its ruling is clearly against the logic of the circumstances and is so arbitrary and unreasonable that it shocks the sense of justice and indicates a lack of careful consideration." Id. (quoting Lohman v. Norfolk & Western Ry., 948 S.W.2d 659, 668 (Mo. App. 1997)).

I.

Sexton argues in his first point that the trial court erred in dismissing his petition for lack of subject matter jurisdiction because he alleged facts which amounted to the "something extra" necessary to remove his case from the exclusive jurisdiction of the Workers' Compensation Law. Specifically, Sexton argues that he pleaded specific affirmative acts of negligence by Respondents that created a hazardous condition.

"The Workers' Compensation Law supplants the common law in determining remedies for on-the-job injuries." Vatterott v. Hammerts Iron Works, Inc., 968 S.W.2d 120, 121 (Mo. banc 1998). Before the law was enacted in 1925, workers who filed negligence actions against their employers were frequently barred from recovery by common law defenses. Id. The Workers' Compensation Law did away with the common law defenses and provided workers with a method of compensation for injuries sustained on the job, while placing the burden of such losses on the employers. Id.

Section 287.040 extends coverage under the Workers' Compensation Law to certain constructive employment relationships in which employers have work done by contract. Id. Section 287.040.3, applicable here, provides:

3. The provisions of this section shall not apply to the owner of premises upon which improvements are being erected, demolished altered or repaired by an independent contractor but such independent contractor shall be deemed to be the employer of the employees of his subcontractors and their subcontractors when employed on or about the premises where the principal contractor is doing work.

"Where the facts are not in dispute as to the nature of the agreement and the work required by it, the existence or absence of statutory employment is a question of law for the courts to decide." Bass v. National Super Markets, Inc., 911 S.W.2d 617, 621 (Mo. banc 1995). Here, the parties do not dispute the following facts that show Jenkins is a statutory employer of Sexton. Jenkins entered into a written contract with KCPL to construct an addition and office building at the Montrose Power Plant in Henry County, Missouri. Under the terms of the contract, Jenkins was to act as the independent general contractor for the project. Jenkins subcontracted with Intec to perform the concrete flat work on the project. Sexton was an employee of Intec working on the project at the Montrose Power Plant at the time of his injury. Thus, based on these facts, Jenkins is the statutory employer of Sexton under section 287.040.3 as a matter of law. Id.

As a statutory employer, Jenkins had a duty to provide a safe working environment. Lyon v. McLaughlin, 960 S.W.2d 522, 525 (Mo. App. 1998). This duty is not delegable. Id. Section 287.120 gives an employer immunity from common law liability for breaches of this duty. Id. This immunity extends to any employee charged with carrying out the employer's duties. Felling v. Ritter, 876 S.W.2d 2, 5 (Mo. App. 1994). A co-employee's failure to perform a duty delegated to him by his employer does not give rise to a cause of action by a fellow employee who is injured because of the failure. Id. However, a co-employee loses this immunity if he affirmatively causes or increases his fellow employee's risk of injury. Lyon, 960 S.W.2d at 525. A plaintiff's petition must charge "something extra," beyond a breach of general supervision and safety for the co-employee to be liable. Id. "The petition must allege 'an affirmative negligent . . . act outside the scope of [the co-employee's] responsibility to provide a safe workplace[.]'" Felling, 876 S.W.2d at 5, (quoting Tauchert v. Boatmen's National Bank of St. Louis, 849 S.W.2d 573, 574 (Mo. banc 1993)). Whether a petition charges facts sufficient to establish the requisite "something extra" is determined on a case-by-case basis. Lyon, 960 S.W.2d at 526.

Here, Sexton's petition alleges that the three individual Respondents, Sloniker, Hurlburt and Lacy, all of whom were employed by Jenkins, were negligent in failing to make the area around the elevator shaft safe. Specifically, Sexton asserts in his petition that the Respondents "negligently and carelessly designed, constructed, built, and installed the hand and guardrails at the Montrose Power Plant elevator shaft where Plaintiff, Kevin Dale Sexton, fell on March 23, 1993." The petition also alleges that the Respondents failed to use the proper materials in constructing the guardrail, failed to provide a safe way between floors and failed to warn of the danger.

Generally, in cases that have recognized that the "something extra" element has been met, the supervisor or co-worker was present with the plaintiff and was performing an act or operating a piece of equipment that resulted in the injury, or...