Wilson v. C.C. Southern, Inc.

• Decision Date: 18 May 2004
• Docket Number: No. WD 62805.,WD 62805.
• Citation: 140 S.W.3d 115
• Parties: Mary Joyce WILSON, Brian Keith Wilson, John David Wilson, and April Wilson, Respondents-Appellants, v. C.C. SOUTHERN, INC., Appellant-Respondent, and Central Transport International, Inc., Nancy Farmer, Robert Kerr, and Kerr Cartage Company, Inc., Respondents.
• Court: Missouri Court of Appeals

140 S.W.3d 115

Mary Joyce WILSON, Brian Keith Wilson, John David Wilson, and April Wilson, Respondents-Appellants, v. C.C. SOUTHERN, INC., Appellant-Respondent, and Central Transport International, Inc., Nancy Farmer, Robert Kerr, and Kerr Cartage Company, Inc., Respondents.

No. WD 62805.

Missouri Court of Appeals, Western District.

May 18, 2004.

Motion for Rehearing and/or Transfer to Supreme Court Denied June 29, 2004.

Application for Transfer Denied August 24, 2004.

Appeal from the Labor and Industrial Relations Commission.

Elizabeth C. Carver, Charles Bernard Jellinek, St. Louis, for Appellant.

William Ringer, Carolyn Biersmith-McCarthy, Office of Attorney General, David Bony, Kansas City, David Lunceford, Independence, for Respondent.

PAUL M. SPINDEN, Judge.

The central issue in this workers' compensation case is who was John Wilson's employer. Wilson was driving a tractor leased by C.C. Southern, Inc., from Robert Kerr pulling a C.C. Southern trailer when the rig crashed and killed him. Although C.C. Southern contracted with Kerr for Wilson's services as a driver, the Labor and Industrial Relations Commission decided that C.C. Southern was Wilson's "special employer" and liable exclusively for paying workers' compensation benefits to his survivors.

Wilson died on March 11, 1998, when the tractor-trailer rig he was driving crashed enroute from Springfield to Kansas City. Kerr owned the tractor that Wilson was driving. C.C. Southern had leased it under a contract with Kerr. Kerr and Kerr Cartage did not participate in this case, and the record does not establish what Kerr's relationships to Kerr Cartage and to Wilson were. C.C. Southern was affiliated with a freight broker, Central Transport International, Inc., which had arranged the shipment. C.C. Southern and Central Transport were wholly-owned subsidiaries of Centra, Inc.

The commission's administrative law judge awarded benefits to Wilson's widow and son, John Wilson, on the ground that Wilson was a "special employee" of C.C. Southern and was acting in the course and scope of that employment when the crash occurred. The administrative law judge also found that C.C. Southern had a reasonable basis for defending the claim and denied Wilson's dependents' request that the costs of the proceedings be assessed against it. C.C. Southern appealed to the commission, which affirmed the award without modifying it. C.C. Southern and Wilson's dependents cross-appealed. C.C. Southern asserts that the commission erred in deciding that it was liable because Wilson's general employer retained sufficient control over the details of Wilson's work to protect it from liability. Because neither Kerr nor Kerr Cartage carried workers' compensation insurance, any liability on their parts would fall to the Second Injury Fund. Wilson's survivors argue that C.C. Southern's control of Wilson's work was sufficient for it to be deemed to have assumed liability as a special employer, but, they assert, the commission miscalculated the amount of benefits.¹

We need not resolve the issue of whether or not C.C. Southern was Wilson's employer because C.C. Southern asserts that Wilson was an employee of its independent contractor. Assuming, arguendo, that C.C. Southern is correct, the result is the same because of the provisions of § 287.040.1, RSMo 2000, which says:

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.

In this statute, the General Assembly has created a constructive employment relationship in contravention of common law. Montgomery v. Mine La Motte Corporation, 304 S.W.2d 885, 888 (Mo.1957). It enacted § 287.040.1 to prevent employers from circumventing workers' compensation law by hiring independent contractors. Bass v. National Super Markets, Inc., 911 S.W.2d 617, 619 (Mo. banc 1995), cert. denied, 517 U.S. 1208, 116 S.Ct. 1825, 134 L.Ed.2d 930 (1996).

Liability under § 287.040.1 requires coexistence of three elements: (1) that the work be performed pursuant to contract, (2) that the injury occur on or about the premises of the employer contracting for the work, and (3) that the work be performed in the usual course of business of that employer. State ex rel. MSX International, Inc. v. Dolan, 38 S.W.3d 427, 429 (Mo. banc 2001). All three elements are satisfied in this case.

As C.C. Southern maintains, Wilson drove the tractor pulling C.C. Southern's trailer pursuant to a contract with Kerr, satisfying the first element. C.C. Southern describes itself as "an interstate carrier ... and a common carrier of commodities in interstate traffic[.]" We, therefore, do not doubt that Wilson was performing work that was in C.C. Southern's usual course of business when the crash occurred, satisfying the third element.

Although not as straightforward, we are confident that the second element — that the injury occurred on the premises of the employer contracting for the work — was also satisfied. Wilson died in a highway crash — not at C.C. Southern's facilities — and, of course, a public highway is not the contracting employer's premises. See, e.g., Rutherford v. Tobin Quarries, Inc., 336 Mo. 1171, 82 S.W.2d 918, 924 (1935); Cole v. Town and Country Exteriors, 837 S.W.2d 580, 585 (Mo.App.1992), overruled in part on other grounds, Hampton v. Big Boy Steel Erection, 121 S.W.3d 220 (Mo. banc 2003). Premises, however, "should not be given a narrow or refined construction, but rather, in keeping with both the spirit and specific direction... of the [workers' compensation law,] should be liberally construed and applied.... `[P]remises' as there used contemplates any place, under the exclusive control of the employer, where the employer's usual business is being carried on or conducted[.]" Sargent v. Clements, 337 Mo. 1127, 88 S.W.2d 174, 178 (1935); see also, Cates v. Williamson, 117 S.W.2d 655, 658 (Mo.App.1938) ("premises of the employer is any place where, in the usual operation of his business, it is necessary for those whom he has employed to do the work to be while doing it.") (quoting Simpson v. New Madrid Stave Company, 227 Mo.App. 331, 52 S.W.2d 615, 616 (1932)). An employer certainly has exclusive control of a place if the general public does not have a right to use it. State ex rel. J.E. Jones Construction Company v. Sanders, 875 S.W.2d 154, 158 (Mo.App.1994).

Under the required broad interpretation, C.C. Southern's premises can be mobile. Seeley v. Anchor Fence Company, 96 S.W.3d 809, 817-19 (Mo.App.2002), overruled in part on other grounds, Hampton v. Big Boy Steel Erection, 121 S.W.3d 220 (Mo. banc 2003) (a trailer involved in a highway crash is employer's premises, under employer's exclusive control, albeit at a temporary location away from employer's primary place of business). The tractor-trailer rig in which Wilson was killed was the means by which C.C. Southern conducted its usual business of transporting goods. C.C. Southern required Wilson to be driving the rig in fulfillment of work for which it had contracted. The general public did not have a right to use either C.C. Southern's tractor or trailer. Thus, we deem the tractor to be included in C.C. Southern's premises.

Because Wilson performed work for C.C. Southern under contract while on C.C. Southern's premises as part of its usual course of business, C.C. Southern was liable under § 287.040.1 for compensating Wilson's dependents. Section 287.040.4 says:

[T]he immediate contractor or subcontractor shall be liable as an employer of the employees of his subcontractors.... The liability of the immediate employer shall be primary, and that...