State ex rel. Missouri Highway and Transp. Com'n v. Copeland, No. 17614
| Decision Date | 05 December 1991 |
| Docket Number | No. 17614 |
| Citation | 820 S.W.2d 80 |
| Parties | STATE of Missouri, ex rel. MISSOURI HIGHWAY AND TRANSPORTATION COMMISSION, Relator, v. Honorable Fred W. COPELAND, Presiding Judge of the Circuit Court of New Madrid County, Missouri, Respondent. |
| Court | Missouri Court of Appeals |
Mo. Hwy. & Trans. Comm. Rich Tiemeyer, Chief Counsel, Daniel Hennemann, Asst. Counsel, Sikeston, for relator.
Stephen L. Taylor, Burns & Taylor, Sikeston, for respondent.
This is an action in prohibition in which relator seeks to prohibit the respondent judge from granting a motion to intervene in case No. CV190-373CC in the Circuit Court of New Madrid County, Missouri. The motion to intervene was filed by Eddie Haynes and Scottie M. Haynes for the limited purpose of requesting the Circuit Court of New Madrid County to dismiss any claim on behalf of Eddie Haynes set forth in the petition in that case. A preliminary order in prohibition was entered. Rule 97.04. For the reasons that follow, that preliminary order is quashed.
Relator filed its petition, as plaintiff, December 12, 1990, in the Circuit Court of New Madrid County, Missouri, against Marion Pepsi-Cola Bottling Company and James Eli Payne, as defendants. Relator's petition in case No. CV190-373CC was in three counts. Count I sought recovery for personal injuries sustained by Eddie Haynes as a result of a motor vehicle accident. The petition alleged that on or about October 11, 1990, in New Madrid County, Missouri, Haynes was an employee of relator; that Haynes was operating a truck owned by relator; that an employee of Marion Pepsi-Cola Bottling Co., James Eli Payne, drove a vehicle owned by Marion Pepsi-Cola Bottling Co. into and against the vehicle that Haynes was operating. The petition alleged that as a result of the accident, Haynes was injured due to the negligence of Marion Pepsi-Cola Bottling Co. and its employee, James Eli Payne. It further alleged that the injuries Eddie Haynes sustained in the accident were incurred "in the scope and course of employment, pursuant to Chapter 287 of the Revised Statutes of Missouri (1986)." Relator's petition alleged that relator was "subrogated to the right of the employee or to the dependents" against Marion Pepsi-Cola Bottling Co. and James Eli Payne. Relator, in its New Madrid County case, sought recovery of damages for the injuries Haynes received as a result of the accident. It based its right of recovery on § 287.150.1. 1
In Count II of its New Madrid County suit, relator sought recovery for injuries that another employee received from the same accident. In Count III relator sought to recover for damages that two of its vehicles allegedly incurred in the accident.
On January 14, 1991, Eddie Haynes and his wife, Scottie M. Haynes, filed an action in the Circuit Court of New Madrid County for his personal injuries and for her loss of consortium. Their action arose out of the same accident that was the basis for relator's case No. CV190-373CC.
On April 2, 1991, Eddie Haynes filed a motion to intervene in relator's case, No. CV190-373CC, for the limited purpose of requesting the trial court to dismiss that case. On May 30, 1991, that motion was granted and an order was entered in that case dismissing "any claim on behalf of Eddie Haynes." On June 5, 1991, the judge in case No. CV190-373CC--the respondent judge in this action--entered a further order that the May 30, 1991, order "is stayed for 20 days to allow plaintiff [relator] to seek Writ of Prohibition." This court entered a preliminary order in prohibition June 19, 1991.
Relator first contends that the respondent judge "exceeded the parameters of his jurisdiction" by granting Eddie Haynes' motion to intervene in case No. CV190-373CC for the limited purpose of dismissing that action "because relator is clearly empowered to bring such an action pursuant to a right of subrogation created by § 287.150.1, RSMo (1986)."
Section 287.150.1 states:
Where a third person is liable to the employee or to the dependents, for the injury or death, the employer shall be subrogated to the right of the employee or to the dependents against such third person, and the recovery by such employer shall not be limited to the amount payable as compensation to such employee or dependents, but such employer may recover any amount which such employee or his dependents would have been entitled to recover. Any recovery by the employer against such third person, in excess of the compensation paid by the employer, after deducting the expenses of making such recovery shall be paid forthwith to the employee or to the dependents, and shall be treated as an advance payment by the employer, on account of any future installments of compensation.
Section 287.150.3 states:
Whenever recovery against the third person is effected by the employee or his dependents, the employer shall pay from his share of the recovery a proportionate share of the expenses of the recovery, including a reasonable attorney fee. After the expenses and attorney fee have been paid the balance of the recovery shall be apportioned between the employer and the employee or his dependents in the same ratio that the amount due the employer bears to the total amount recovered, or the balance of the recovery may be divided between the employer and the employee or his dependents as they may agree. Any part of the recovery found to be due to the employer, the employee or his dependents shall be paid forthwith and any part of the recovery paid to the employee or his dependents under this section shall be treated by them as an advance payment by the employer on account of any future installments of compensation.
The problem that gives rise to this action in prohibition is that Missouri does not have a priority statute that prescribes who is entitled to proceed first against a third party tort-feasor, the employee or the employer 2. Both the employee and employer have beneficial interests in the cause of action against the third party tort-feasor. McKenzie v. Missouri Stables, Inc., 225 Mo.App. 64, 34 S.W.2d 136, 139 (1930). "[E]ither the employee or the employer is plainly a real party in interest, and, of whatever sum he recovers from the third party, he is, in part at least, the trustee of an express trust, the employee to see that the employer's right of subrogation is protected, and the employer to see that the employee secures the surplus remaining after he himself is indemnified." 34 S.W.2d at 139. "[T]he employer may sue in his own name without joining the injured employee." Id. "[T]he employee ... may also sue without joining the employer." Id.
The interworkings of §§ 287.150.1 and .3 are explained in Veninga v. Liberty Mutual Ins. Co., 388 S.W.2d 535, 537 (Mo.App.1965): 3
§ 287.150, 1, supra, provides that the employer " * * * may recover any amount which such employee or his dependents would have been entitled to recover * * * " and that if the employer does so, any amount of recovery in excess of the compensation paid by the employer" * * * after deducting the expenses of making such recovery * * * " shall be paid to the employee or to his dependents and shall be treated as an advance payment by the employer on account of any further installments of compensation. Subsection 3 of the statute deals with the allocation of expenses when the employee makes a recovery and provides that " * * * the employer shall pay from his share of the recovery a proportionate share of the expenses of the recovery * * *." Subsection 3 has been interpreted as offering an incentive for the employee to bring the third party action and if he brings the action, he may secure a greater net recovery than he will if the employer or insurer effects the recovery. [Citation omitted.] It is therefore apparent that while either the employer or the employee has the right to bring the action seeking to effect a third party recovery and while either has the right to intervene in an action brought by the other, O'Hanlon Reports, Inc. v. Ben Needles & Son Hauling & Exp. Co., [360 S.W.2d 382 (Mo.App.1961) ], neither party can force the other to bring the action. That is a matter for their separate election.
The question with which this court is faced is what happens when both bring separate suits. Who is entitled to determine the manner in which the claim proceeds?
What is now § 287.150.3--the employee's right to effect recovery on behalf of himself and an employer who has paid workers' compensation--was enacted in 1955. 4 That right existed prior to the enactment of the statute, but it was not a statutory right. See General Box Co. v. Missouri Utilities Co., 331 Mo. 845, 55 S.W.2d 442, 445-46 (1932), and Sylcox v. Nat'l Lead Co., 225 Mo.App. 543, 38 S.W.2d 497, 501 (1931). The employer's statutory right of subrogation--now § 287.150.1--existed prior to 1955.
General Box Co. discussed the relationship of the employer's statutory right of subrogation and the employee's right to effect recovery. It explained that § 3309, RSMo 1929 (now § 287.150.1), permitted "the employer [to take] over unimpaired the injured employee's whole cause of action against the negligent third party ... by statutory assignment rather than strict subrogation, and, so far as the negligence of the third party is concerned, [to step] in the shoes of the injured employee." 55 S.W.2d at 445 (emphasis added). The court concluded:
It thus appears that either the injured employee may bring his own action for damages against the negligent third party, or, if he declines or neglects to do so, then the subrogated employer liable for payment of compensation may bring such action, or both such parties may join in such suit. (Emphasis added.)
The injury to the relator's employee occurred October 11, 1990. Relator filed its action (case No. CV190-373CC) for recovery for the employee's injuries ...
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