State ex rel. Larkin v. Oxenhandler, WD 64321.

• Citation: 159 S.W.3d 417
• Decision Date: 18 January 2005
• Docket Number: No. WD 64321.,WD 64321.
• Parties: STATE of Missouri Ex Rel., Bobby G. LARKIN, Relator, v. Honorable Gary M. OXENHANDLER, Respondent.
• Court: Missouri Court of Appeals

159 S.W.3d 417

STATE of Missouri Ex Rel., Bobby G. LARKIN, Relator, v. Honorable Gary M. OXENHANDLER, Respondent.

No. WD 64321.

Missouri Court of Appeals, Western District.

January 18, 2005.

Motion for Rehearing and/or Transfer Denied March 1, 2005.

Application for Transfer Denied April 26, 2005.

Wade H. Ford, Jr., Susan Ford Robertson, Richard S. Ward, Columbia, MO, for relator.

Sidney E. Wheelan, Moberly, MO, for respondent.

Before: JAMES M. SMART, P.J., ROBERT G. ULRICH and LISA WHITE HARDWICK, JJ.

Motion for Rehearing and/or Transfer to Supreme Court Denied March 1, 2005.

ROBERT G. ULRICH, Judge.

Relator Bobby Larkin seeks a writ of prohibition against the trial court's decision to proceed in a wrongful death action against him by Mendy Blades, widow; Fred and Linda Blades, parents; and James and Rachel Blades, children of Douglas Blades, decedent. Mr. Larkin filed a motion to dismiss the action for lack of subject matter jurisdiction, which was denied by respondent. Mr. Blades and Mr. Larkin were co-workers, employed by the same employer when Mr. Blades was killed by a vehicle driven by Mr. Larkin. This court issued a preliminary writ directing Respondent not to proceed with the underlying claim.

Mr. Larkin argues that the circuit court is exercising jurisdiction over a claim to which exclusive jurisdiction lies within the Labor and Industrial Relations Commission pursuant to the Workers' Compensation Act, RSMo § 287.120.1.¹ Because Mr. Blades' death occurred while both parties were acting within the course of their co-employment and the petition fails to sufficiently allege that Mr. Larkin performed any affirmative negligent acts beyond the duty to maintain a safe working environment, the trial court lacks subject matter jurisdiction over the claim. The writ of prohibition is made absolute.

Allegations of Fact and Procedural History

The facts alleged in Plaintiff's First Amended Petition reflect that on October 12, 2000, Relator Bobby Larkin was employed by APAC,² and was assisting in a road construction project on U.S. Highway 63 in Boone County. Mr. Larkin was operating a dump truck owned by APAC and was transporting gravel to a construction site approximately ten miles north of Columbia. He had driven off site to acquire gravel and returned to unload his cargo; he traveled to the construction site via northbound U.S. Highway 63.

APAC was engaged in the process of building a shoulder along the eastern side of southbound U.S. Highway 63. At the location where the underlying incident occurred, Highway 63 is a four-lane highway with two southbound lanes separated from two northbound lanes by a grass median. On the date of the incident, the east lane (the passing lane for southbound traffic) and a majority of the west lane had been closed to traffic. The outermost portion of the west lane and the west shoulder remained open to traffic, but the speed limit for southbound motorists passing through the construction zone was 50 miles per hour rather than the normal 70 miles per hour limit. Bright orange traffic barrels delineated the boundaries of the construction zone. Signs were in place indicating to traffic that a portion of the roadway was closed and that speed was reduced.

Proceeding north in the northbound lanes of Highway 63, Mr. Larkin turned left to enter the construction site in the southbound lanes by using a turn-off perpendicular to the highway, located between the northbound and southbound lanes. Another worker told Mr. Larkin that the gravel was needed at a site north of the turn off, and Larkin began to back the dump truck to this different location. While backing the truck, Mr. Larkin entered the western lane of Highway 63, which remained open for traveling motorists, and began moving northbound in the southbound lane of traffic.

Douglas Blades was employed by APAC as a heavy equipment operator, and was operating a piece of heavy equipment when Mr. Larkin returned to the construction site. Mr. Blades noticed that Mr. Larkin had exited the boundaries of the construction site, and had backed the truck he was driving into the open southbound lane. At approximately 1:53 P.M., Blades left the equipment he was operating and walked behind Larkin's vehicle to flag down vehicles traveling through the site in the open lane. Deposition testimony indicates that Mr. Blades was given the instruction to "spot" the truck, i.e. showing the truck the spot to dump its cargo. The dump truck that Mr. Larkin drove was equipped with sideview mirrors, but provided the driver with no method of seeing directly behind the vehicle. While moving to the area designated to receive the truck's cargo, the truck struck Mr. Blades and backed over him, causing his death.

Mr. Larkin was sued for the wrongful death of Douglas Blades. Plaintiff's First Amended Petition alleges that while APAC is immune from suit under the Workers' Compensation Act, Mr. Larkin could be independently sued as a co-employee. The petition claims that Mr. Larkin created a hazardous condition by moving outside the designated construction zone and into the open lane of travel, which was compounded by backing the truck in a northbound direction against southbound traffic. Plaintiff's petition alleges that Larkin "knew or should have known that Douglas Blades was behind his vehicle" and that Larkin "operated his vehicle ... with reckless, careless, and conscious disregard for the consequences." The petition further alleges that Larkin owed "a personal duty, separate and apart from the employer's duty to provide a safe work area" and that Larkin violated two separate Missouri statutes, constituting negligence per se.³ Plaintiffs contend that these factors charge "something more" than the breach of an employer's duty of general supervision and safety, allowing the action to be brought outside the exclusive remedies provided by the Workers' Compensation Law.

Mr. Larkin filed a motion to dismiss for lack of subject matter jurisdiction pursuant to Rule 55.27, arguing that proper subject matter jurisdiction lies exclusively with the Labor and Industrial Relations Commission. The motion was overruled. Mr. Larkin then filed his petition for this court's writ of prohibition, and a preliminary writ of prohibition was issued on July 22, 2004.

Standard for Prohibition

Petitions before this court for a writ of prohibition differ from traditional appeals, most importantly in that "[p]rohibition is an independent proceeding to correct or prevent judicial proceedings that lack jurisdiction." State ex. rel. Pulliam v. Reine, 108 S.W.3d 148, 154 n. 6 (Mo.App. W.D.2003)

(quoting State ex. rel. Am. Family Mut. Ins. Co. v. Koehr, 832 S.W.2d 7, 8 (Mo.App. E.D.1992)). Prohibition serves as a means of preventing circuit courts "from exercising jurisdiction over actions where workers' compensation provides the exclusive remedy; subject matter jurisdiction over such matters properly lies in the Labor and Industrial Relations Commission." State ex. rel. Taylor v. Wallace, 73 S.W.3d 620, 621 (Mo. banc 2002). "[P]rohibition is an appropriate remedy when it appears from the fact of the pleadings that defendant is immune from the suit as a matter of law." State ex. rel. FAG Bearings Corp. v. Perigo, 8 S.W.3d 118, 120 (Mo.App. S.D.1999). A circuit court lacking subject matter jurisdiction may take no action other than to dismiss the suit. Id.

Missouri's Workers' Compensation Law pre-empts judicial resolution of tort claims arising "out of and in the course of" employment; an employer is released from liability but required to furnish compensation irrespective of negligence. RSMo 287.120(1). "The Workers' Compensation Law supplants the common law in determining remedies for on-the-job injuries." Sexton v. Jenkins & Assocs., Inc., 41 S.W.3d 1, 4 (Mo.App. W.D.2000) (quoting Vatterott v. Hammerts Iron Works, Inc., 968 S.W.2d 120, 121 (Mo. banc 1998)). A more limited form of this immunity also extends to employees of the exempt employer; "[s]uits against employees personally for breach of the duty to maintain a safe working environment are preempted by the workers' compensation remedy[.]" State ex. rel. Taylor, 73 S.W.3d at 621. "However, an employee may sue a fellow employee for affirmative negligent acts outside the scope of an employer's responsibility to provide a safe workplace." Id. at 621-22 (quoting Kelley v. DeKalb Energy Co., 865 S.W.2d 670, 672 (Mo. banc 1993)). When a workers' compensation exclusivity defense is raised, the motion to dismiss should be granted where it appears, by a preponderance of the evidence, that the trial court lacks subject matter jurisdiction because of workers' compensation exclusivity. Collier v. Moore, 21 S.W.3d 858, 860 (Mo.App. E.D.2000). While the burden of proving the lack of jurisdiction falls on the party who raises the motion to dismiss, the quantum of proof required is not high. Id. The Workers' Compensation Law is to be liberally interpreted, and where there is doubt regarding a question of jurisdiction, it should be resolved in favor of the Labor and Industrial Relations Commission. Sexton, 41 S.W.3d at 7.

Discussion and Analysis

The substitution of the Workers' Compensation Law for traditional tort remedies reflects an historical compromise recognizing the benefits of providing a means to effectively resolve claims for workers' injuries without resorting to the unpredictability of litigation. See Gunnett v. Girardier Bldg. & Realty Co., 70 S.W.3d 632 (Mo.App. E.D.2002)

. The extension of Workers' Compensation Law immunity to co-employees reflects a concern for those instances in which a co-employee's alleged negligence may require indemnification by the employer, effectively eliminating the component of the compromise that protects the employer. See State ex. rel. Badami v. Gaertner, 630 S.W.2d 175 (Mo.App. E.D.1982). A co-employee cannot be held liable for failing to carry out the non-delegable duties of the...