Watkins v. Bi-State Development Agency
| Decision Date | 04 June 1996 |
| Docket Number | BI-STATE,No. 68906,68906 |
| Citation | 924 S.W.2d 18 |
| Parties | Gerald R. WATKINS, Employee/Respondent, v.DEVELOPMENT AGENCY, Employer/Respondent, Kloster Construction Company, and Commercial Union, Employer/Insurer/Appellant, and City of St. Louis, Employer/Appellant. |
| Court | Missouri Court of Appeals |
Richard A. Day, Kortenhof & Ely, P.C., St. Louis, for Appellant, Employer/Insurer, Kloster Construction Company and Commercial Union Insurance Company.
Tyrone A. Taborn, City Counselor, Robert L. Lyng, Asst. City Counselor, St. Louis, for Appellant City of St. Louis.
Rick Berry, Law Offices of Rick Berry, P.C., St. Louis, for Claimant Respondent Gerald R. Watkins.
Carl Kessinger, Bi-State Development Agency, St. Louis, for Employer/Respondent Bi-State Development Agency.
Kloster Construction Company (Kloster) and the City of St. Louis (City) appeal from a Labor and Industrial Relations Commission award holding each of them liable to claimant Gerald Watkins (Watkins) for workers' compensation benefits. The Commission affirmed a decision by the Administrative Law Judge (ALJ) finding that Watkins was an employee of both Kloster and the City. The ALJ also found that Watkins was not an employee of Bi-State Development Agency (Bi-State). We affirm. 1
Viewed in the light most favorable to the Commission's award, the facts are as follows. Bi-State is the owner of the Metrolink light rail system, and was the general contractor of the Metrolink construction project. Part of the Metrolink system is constructed on Lambert International Airport property. BiState subcontracted with Kloster to construct the portion of the Metrolink located at the airport. The airport is under the control of the Airport Authority, a political subdivision of the City. Until his injury, Watkins was a full-time employee of the airport police department, also under the control of the Airport Authority.
Bi-State's construction contract with Kloster provided that Kloster was responsible for formulating and carrying out a traffic control plan to deal with congestion foreseen as a result of Metrolink construction at the airport. Kloster submitted a plan, approved by the Airport Authority, which consisted of closing two inner lanes on Lambert Boulevard, erecting signs with traffic directions, placing orange traffic barrels to route traffic, etc. Although this plan was implemented, traffic began to back up onto Interstate 70 during peak traffic hours.
The Airport Authority engineer, Mr. Kuelker, told Bi-State that the traffic control measures were insufficient. The Authority threatened to suspend all construction until traffic disruptions were ameliorated. Bi-State, Kloster and Mr. Kuelker discussed possible alternatives and the parties decided to examine the feasibility of using an electric traffic signal. However, this course of conduct was soon rejected, and the parties ultimately decided to use human traffic control officers. Kloster investigated hiring a private security firm, however, the Airport Authority preferred that airport police officers be used to direct traffic. The Authority wanted the traffic control officers to have "venue" to enforce applicable traffic ordinances, to issue summons and to effectuate arrest if required.
Airport police commanders suggested to Kloster that the officers be paid $15.00/hour, as this was the "going rate" for secondary employment of uniformed police officers. A notice was placed on the airport police bulletin board seeking officers to work the traffic detail. Several different officers had, at various times, the responsibility of scheduling the officers who wished to work traffic detail. The Authority told Bi-State where and when traffic control was needed. Bi-State would then convey this information to Kloster. Kloster would then tell the scheduling airport police officer, who would give instructions to the officers on the street directing traffic. The Authority had the discretion to approve an officer's request to work the traffic detail, and had the power to remove an officer from the detail.
The officers directing traffic wore their airport police uniforms and used equipment provided by the police department. While working, they were subject to the airport police disciplinary rules and regulations. The officers were instructed by Kloster to give expedited preference in and out of the construction site to Kloster and other construction-related trucks. If Bi-State or Kloster were unhappy with any officer's performance, they conveyed their concerns to the scheduling officer, who in turn informed the officer on the street.
The officers were paid by Kloster. The scheduling officer would convey to Kloster the names of officers working and hours worked on the project in a particular week. Kloster would pay each officer in cash in separate envelopes left at the airport police office. Eventually, Kloster was reimbursed by Bi-State for this extra traffic control cost as an addition to the contract, and a 5% administration cost was also recovered. The officers did not interview with Kloster or fill out employment applications or W-2 forms. At the end of the year, Kloster provided each officer with an IRS Form 1099 in order to report additional income.
Watkins was one of the airport police officers who took secondary employment directing traffic. His work was scheduled by Officer Cheney of the airport police, and Watkins communicated any problems with his schedule directly to Cheney. Watkins was working traffic detail when he was struck by a rental car. He sustained severe head injuries.
Initially, it must be noted that the award of the Commission was only "temporary or partial." Ordinarily, no appeal lies from a temporary or partial award. Stufflebean v. Crete Carrier Corporation, 895 S.W.2d 115 (Mo.App.1995)[1-4]. However, appellate review on the issue of liability in a workers' compensation case is permissible although an award is denominated "temporary or partial." Id. (citing Woodburn v. May Distributing Co., 815 S.W.2d 477 (Mo.App.1991) ). Since liability is the only issue in this appeal, review is possible even though the award was temporary.
On all issues, our review is limited to a determination of whether the Commission's award is supported by competent and substantial evidence of the whole record. Hunsperger v. Poole Truck Lines, Inc., 886 S.W.2d 656 (Mo.App.199...
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...R & S Exp., 924 S.W.2d 331 (Mo. App. 1996); Lakeman v. Treasurer of Missouri, 923 S.W.2d 499 (Mo. App. 1996); Watkins v. Bi-State Development Agency, 924 S.W.2d 18 (Mo. App. 1996); Stillwell v. Universal Const. Co., 922 S.W.2d 448 (Mo. App. 1996); Cruzan v. City of Paris, 922 S.W.2d 473 (Mo......
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