State ex rel. Mw Builders, Inc. v. Midkiff

CourtUnited States State Supreme Court of Missouri
Citation222 S.W.3d 267
Docket NumberNo. SC 87773.,SC 87773.
PartiesSTATE ex rel. MW BUILDERS, INC., Relator, v. The Honorable Sandra C. MIDKIFF, Respondent.
Decision Date01 May 2007

Theresa A. Otto, John J. Gates, Kansas City, for Relator.

John H. Norton, Kathryn S. Perkins, Richard F. Lombardo, Charles H. Stitt, Joseph J. Roper, Lynn Weddle Judkins, Kansas City, for Respondent.


This proceeding arises from an underlying personal injury suit brought by Randy Piveral against MW Builders, Inc. (MWB). MWB seeks a writ to bar the exercise of subject matter jurisdiction over Piveral's common law tort claim and asserts that Piveral is a statutory employee as defined under sections 287.040.1 and 287.040.3, RSMo 2000, that Missouri's Workers' Compensation Law is Piveral's exclusive remedy, and that jurisdiction rests solely with the Missouri Labor and Industrial Relations Commission. The trial court denied MWB's motion to dismiss, and the court of appeals denied MWB's subsequent petition for writ of prohibition. Thereafter, MWB refiled the petition in this Court, which issued a preliminary writ. Mo. Const. art. V, sec. 4. The preliminary writ is now made absolute.


On February 19, 2003, MWB entered into a written construction contract with Northwest Missouri State University (NMSU) in Maryville, Missouri. Under the terms of the contract, MWB was to "furnish all labor and materials and perform all work required for furnishing and installing all labor, materials, equipment and transportation and everything necessarily inferred from the general nature and tendency of the plans and specifications for the proper execution of the work for Residence Halls [at the University] ...." On March 12, 2003, MWB entered into a "Standard Form of Subcontract" with Northwest Missouri Masonry, Inc., to perform the masonry work. Piveral was an employee of Northwest Missouri Masonry.

On September 11, 2003, while erecting improvements on the residence hall project at NMSU, Piveral sustained personal injuries when he fell from scaffolding. To seek compensation for his injuries, Piveral filed the petition for damages in the circuit court against MWB, Northwest Missouri Masonry, Summit Specialty Productions, Inc. (the scaffolding supplier), and two of his co-employees. The petition alleged that MWB and/or its subcontractor, Northwest Missouri Masonry, negligently erected the scaffolding from which Piveral fell and negligently breached their duty to supervise and inspect the erection, ensure its compliance with OSHA, and post warnings regarding its unsafe condition. As noted, the trial court denied MWB's motion to dismiss, and this writ proceeding followed.


A writ of prohibition is appropriate to prevent a court from exercising jurisdiction over actions in which it has no subject matter jurisdiction or to remedy an excess of jurisdiction or an abuse of discretion where the lower court lacks the power to act as intended. State ex rel. Taylor v. Wallace, 73 S.W.3d 620, 621 (Mo. banc 2002). The Workers' Compensation Law provides the exclusive rights and remedies of injured workers. Section 287.120.1, RSMo 2000; State ex rel. Taylor, 73 S.W.3d at 621. A motion to dismiss for lack of subject matter jurisdiction is a proper method to raise as a defense to a tort action that plaintiff's exclusive remedy lies under Missouri's Workers' Compensation Law, as provided in chapter 287. James v. Poppa, 85 S.W.3d 8, 9 (Mo. banc 2002). "Whenever it appears by suggestion of the parties or otherwise that the court lacks jurisdiction of the subject matter, the court shall dismiss the action." 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." James, 85 S.W.3d at 9. The determination of whether a case falls within the exclusive jurisdiction of the Workers' Compensation Law is a question of fact that is left to the sound discretion of the trial court. Id. Accordingly, this Court reviews for abuse of discretion only. Id.


MWB argues that the trial court erred in denying its motion to dismiss for lack of subject matter jurisdiction because it was the statutory employer of Piveral at the time of the accident and injuries alleged. If so, MWB explains, then Missouri's Workers' Compensation Law vests exclusive jurisdiction over Piveral's tort claims against MWB with the Missouri Labor and Industrial Relations Commission and not with the trial court. Thus, the central issue in this case is whether MWB was a statutory employer as contemplated by the statute.

"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). Section 287.120 governs the determination of when an injury falls under the Workers' Compensation Law, stating, in pertinent part:

1. Every employer subject to the provisions of this chapter shall be liable, irrespective of negligence, to furnish compensation under the provisions of this chapter for personal injury or death of the employee by accident arising out of and in the course of his employment, and shall be released from all other liability therefore whatsoever, whether to the employee or any other person....

2. The rights and remedies herein granted to an employee shall exclude all other rights and remedies of the employee . . . at common law or otherwise, on account of such accidental injury or death, except such rights and remedies as are not provided by this chapter.

A "statutory employer" is defined as,

1. Any person who has work done under contract on or about his premises which is an operation of the usual business which he there carries on shall be deemed an employer and shall be liable under this chapter to such contractor, his subcontractors, and their employees, when injured or killed on or about the premises of the employer while doing work which is in the usual course of his business.

* * *

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.

Section 287.040. Under these provisions, statutory employment exists when: (1) the work is performed pursuant to a contract; (2) the injury occurs on or about the premises of the alleged statutory employer; and (3) the work is in the usual course of the alleged statutory employer's business. State ex rel. MSX Int'l, Inc. v. Dolan, 38 S.W.3d 427, 429 (Mo. banc 2001). Furthermore, in accordance with subsection 3, an independent contractor is the statutory employer of a subcontractor's employee.

Here, there is no dispute as to whether the work performed by Piveral was pursuant to a contract or whether the work performed was in the usual course of MWB's business. Instead, Piveral maintains that, based on the contract between NMSU and MWB, NMSU retained such significant control over the project that MWB was not an independent contractor for purposes of section 287.040.3. An independent contractor is "one who contracts to perform work according to his own methods without being subject to the control of his employer except as to the result of his work." Horner v. Hammons, 916 S.W.2d 810, 816 (Mo.App.1996) (citing Sargent...

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