Opinion
No. 19-00811-CV-W-BP
2021-05-19
Nathan BLANTON, Plaintiff, v. The KANSAS CITY SOUTHERN RAILWAY COMPANY, Defendant.
Michael T. Blotevogel, Charles W. Armbruster, III, Armbruster, Dripps, Winterscheidt & Blotevogel, LLC, Maryville IL, for Plaintiff. Sean Paul Hamer, Paula L. Brown, Scharnhorst Ast Kennard Griffin, PC, Kansas City MO, for Defendant.
Michael T. Blotevogel, Charles W. Armbruster, III, Armbruster, Dripps, Winterscheidt & Blotevogel, LLC, Maryville IL, for Plaintiff.
Sean Paul Hamer, Paula L. Brown, Scharnhorst Ast Kennard Griffin, PC, Kansas City MO, for Defendant.
ORDER AND OPINION GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
BETH PHILLIPS, CHIEF JUDGE Plaintiff has asserted various claims of negligence against Defendant, The Kansas City Southern Railway Company. Defendant seeks summary judgment on several independent grounds. The Court agrees that undisputed facts in the Record establish that Plaintiff's claims are barred by Missouri's Worker Compensation Law, ("the Act"), so the Motion for Summary Judgment, (Doc. 54), is GRANTED on that basis.
All page numbers for documents filed with the Court are those generated by the Court's CM/ECF system unless otherwise indicated.
Defendant owns the Richards-Gebaur International Freight Center ("the IFC") in Grandview, Missouri. A regular part of Defendant's operations at the IFC involves operating locomotives and moving and positioning rail cars. In April 2000, Defendant entered a contract with In-Terminal Services, ("ITS"). Pursuant to this contract (referred to by the parties as "the Switching Agreement"), ITS was to perform certain switching services for Defendant. "Switching services" involved switching railcars between and among tracks at the IFC. The Switching Agreement also specifically provides that ITS would arrange for Workmen's Compensation Insurance for ITS's employees providing services pursuant to the Switching Agreement. (Doc. 55-2, pp. 6-7 (Switching Agreement, ¶ 5.1(b).))
Plaintiff's attempt to controvert this fact is unavailing for several reasons, including (1) the deposition testimony and other materials he cites do not really address the issue of ownership and (2) the deeds filed with the Jackson County and Cass County Recorders of Deeds are conclusive on the issue of ownership. The Court further notes that Plaintiff himself conceded that Defendant owns the facility and the tracks at the facility. (Doc. 69-4, p. 8 (Plaintiff Dep. p. 132).)
At the time relevant to this suit Plaintiff was a locomotive engineer employed by ITS, and his job duties involved switching railcars pursuant to ITS's obligations under the Switching Agreement. On October 7, 2012, Defendant's dispatcher directed Plaintiff to enter the industrial lead track at the IFC, but Plaintiff was not advised there were railcars on the track ahead of him. Unfortunately, Plaintiff was unable to stop his locomotive in time and collided with the other cars on the track and suffered injuries as a result. Plaintiff filed for worker compensation benefits with ITS's worker compensation carrier, and that claim was settled.
Plaintiff has now asserted claims of negligence against Defendant. Defendant contends that it is entitled to summary judgment because Plaintiff was its statutory employee under the Act and Plaintiff was covered by (and received benefits from) ITS's worker compensation insurance, so he is precluded from asserting his negligence claims. Plaintiff presents several arguments opposing summary judgment. The Court resolves the parties' arguments below.
II. DISCUSSION
A moving party is entitled to summary judgment on a claim only upon a showing that "there is no genuine issue of material fact and that the moving party is entitled to a judgment as a matter of law." See generally Williams v. City of St. Louis , 783 F.2d 114, 115 (8th Cir. 1986). "[W]hile the materiality determination rests on the substantive law, it is the substantive law's identification of which facts are critical and which facts are irrelevant that governs." Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Thus, "[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Wierman v. Casey's Gen. Stores , 638 F.3d 984, 993 (8th Cir. 2011) (quotation omitted). In applying this standard, the Court must view the evidence in the light most favorable to the non-moving party, giving that party the benefit of all inferences that may be reasonably drawn from the evidence. Matsushita Elec. Indus. Co. v. Zenith Radio Corp. , 475 U.S. 574, 587-88, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) ; Tyler v. Harper , 744 F.2d 653, 655 (8th Cir. 1984), cert. denied , 470 U.S. 1057, 105 S.Ct. 1767, 84 L.Ed.2d 828 (1985). A party opposing a motion for summary judgment may not simply deny the allegations, but must point to evidence in the Record demonstrating the existence of a factual dispute. FED. R. CIV. P. 56(c)(1) ; Conseco Life Ins. Co. v. Williams , 620 F.3d 902, 909-10 (8th Cir. 2010).
The Act provides the exclusive remedy employees may assert against employers for injuries suffered on the job. E.g. , MO. REV. STAT. § 287.120.2 ; Missouri Alliance for Retired Americans v. Department of Labor & Indus. Relations , 277 S.W.3d 670, 679 (Mo. 2009) (en banc). It applies to all such instances "except those exclusively covered by any federal law." MO. REV. STAT. § 287.110.1. The term "employer" includes any person or entity "using the service of another for pay" and specifically includes any person, corporation or entity "operating a railroad...." Id. § 287.030(1).
To prevent an employer from circumventing the Act by employing only independent contractors, the Act provides that so-called "statutory employers" are deemed to be employers. Id. § 287.040.1. Statutory employment exists when three elements are met: (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 business of the alleged statutory employer. Tullman v. St. Louis Sci. Ctr. Found. , 34 S.W.3d 860, 862 (Mo. Ct. App. 2001) (citing MO. REV. STAT. § 287.040.1 ). Based on the uncontroverted facts in the Record, Plaintiff was Defendant's statutory employee: Plaintiff was performing work pursuant to a contract between ITS and Defendant, the injury occurred on Defendant's premises, and the work was performed as part of the usual course of Defendant's business. Ordinarily, a statutory employee may assert a worker compensation claim against the statutory employer, e.g., Fisher v. Bauer Corp. , 239 S.W.3d 693, 698 (Mo. Ct. App. 2007), but the statutory employee cannot assert other claims (including common law claims) against the statutory employer. The statutory employee's options can be further limited if he has (as Plaintiff does in this case) a more direct, or immediate, employer. Here, ITS was Plaintiff's immediate employer, and a statutory employer such as Defendant shall not be liable "if the employee was insured by his immediate or any intermediate employer." MO. REV. STAT. § 287.040.3. And as stated earlier, Plaintiff received worker compensation benefits from ITS's insurer, which is significant because "[t]he liability of the immediate employer shall be primary, and that of the others secondary in their order, and any compensation paid by those secondarily liable may be recovered from those primarily liable, with attorney's fees and expenses of the suit." Id. § 287.040.3 ; see also Anderson v. Steurer , 391 S.W.2d 839, 844-45 (Mo. 1965) ("It is clear that the statute makes the immediate (direct) employer of the injured employee primarily liable for compensation, and makes the intermediate subcontractor or subcontractors and finally the principal contractor secondarily liable ‘in their order.’ "); Thornsberry v. Thornsberry Investments, Inc. , 295 S.W.3d 583, 586 (Mo. Ct. App. 2009) ("As Claimant's fully insured immediate employer, TII was primarily liable to pay Claimant's worker's compensation benefits.").
"So-called" because the Act does not use the phrase "statutory employment" or any derivation of that phrase. See Harman v. Manheim Remarketing, Inc. , 461 S.W.3d 876, 878 n.4 (Mo. Ct. App. 2015).
Plaintiff attempts to create an issue on this point by contending that Defendant's employees were not performing work contemplated by the Switching Agreement. (Doc. 62, pp. 21-22.) However, the focus is not on what Defendant's employees were doing; the focus is on Plaintiff and whether he was performing work called for by the Switching Agreement. See Olendorff v. St. Luke's Episcopal-Presbyterian Hospitals , 293 S.W.3d 47, 50 (Mo. Ct. App. 2009) (examining whether the work performed by the plaintiff was "the type of maintenance work contemplated by and regularly performed pursuant to the contract"); Mo. Rev. Stat. § 287.040.1. There is no suggestion that Plaintiff was not performing work pursuant to the Switching Agreement.
Thus, § 287.040.3 establishes that (1) the immediate employer's liability is primary and the statutory employer's liability is secondary and (2) a claim cannot be asserted against the statutory employer if the immediate employer has insurance. Plaintiff does not seriously dispute this characterization of the law but contends that he is still permitted to assert common law claims against Defendant.
A. Defendant's Failure to Have Worker Compensation Insurance
Plaintiff first argues that the Act permits him to assert negligence claims against Defendant despite § 287.040.3's provisions because Defendant did not have worker compensation insurance. He relies on § 287.280.1, which requires every employer "on either an individual or group basis" to insure its liability. That section further provides that if an "employer or group of employers fail to comply with" this requirement, an employee may (1) file a civil suit (in which case the employer loses the Act's protection from common law claims), (2) pursue a worker compensation claim, or (3) file a request for payment from the Second Injury Fund. But the context of this case, § 287.040.3 – and its specification of when claims against statutory employers are barred – controls.
Defendant concedes that it did not have worker compensation insurance. (Doc. 39, p. 69 (Defendant's response to Plaintiff's Statement of Fact No. 32).)
When a federal court is required to ascertain the content of state law, decisions from the state's highest court are binding; decisions from intermediate appellate courts are "persuasive authority" but are not binding. E.g., Brown v. CRST Malone, Inc. , 739 F.3d 384, 390 (8th Cir. 2014) ; United Fire & Cas. Ins. Co. v. Garvey , 328 F.3d 411, 413 (8th Cir. 2003). And, the Court finds the Missouri Court of Appeals' decision in Augur v. Norfolk S. Ry. Co. , 154 S.W.3d 510 (Mo. Ct. App. 2005), to be persuasive. In that case the plaintiff was employed by Freight Consolidation Services, Inc., ("FCS"), and was a statutory employee of Norfolk Southern Railway. The plaintiff was injured on the job and received benefits from FCS's worker compensation carrier, then filed suit against Norfolk Southern. Augur , 154 S.W.3d at 512. Norfolk Southern argued the case had to be dismissed because the claims were barred by the Act, and the plaintiff argued that Norfolk Southern was not an employer subject to the Act because claims against railroads are preempted by the Federal Employer's Liability Act, ("FELA"), so Norfolk Southern could not claim the Act's immunity from common law claims. Id. at 514-15. The Missouri Court of Appeals disagreed with the plaintiff and held that (1) if the plaintiff's claims were covered by FELA they had to be dismissed because FELA is the exclusive remedy and preempts state claims and (2) if the plaintiff's claims were not covered by FELA they had to be dismissed because the Act is the employee's exclusive remedy under state law; either way, the case had to be dismissed. Id. at 515. This analysis made it unnecessary to decide whether the plaintiff's claims were barred by FELA, id. at 515 n.3, because the case had to be dismissed whether they were or not.
Defendant repeatedly claims that Augur was decided by the Missouri Supreme Court. (Doc. 69, pp. 52-54.) Defendant is incorrect.
Defendant mentions FELA for the first time in its Reply Suggestions and simply declares that Plaintiff's claims are barred by FELA. (Doc. 69, pp. 50-52.) But it never conducts a legal analysis, and there is no discussion as to whether Plaintiff was Defendant's employee for purposes of FELA. See Royal v. Missouri & N. Ark. R.R. Co. , 857 F.3d 759, 763 (8th Cir. 2017) (citing Kelley v. Southern Pac. Co. , 419 U.S. 318, 95 S.Ct. 472, 42 L.Ed.2d 498 (1974) ). Obviously, if FELA applies, the case must be dismissed.
With respect to the Act, Norfolk Southern relied on § 287.040.3 to argue (as Defendant does here) that it could not be liable because it was the plaintiff's statutory employer and the plaintiff's immediate employer had worker compensation insurance. Id. at 517 n.6. The plaintiff disputed this contention, contending that Norfolk Southern could not "claim the benefits of section 287.040.[3] because the statute's purpose is to prevent employers from circumventing the requirements of the act by hiring independent contractors to perform work the employer would otherwise perform." Id. The Court of Appeals rejected Plaintiff's argument that Norfolk Southern was circumventing the Act:
In 2005, and after Augur was decided, the Missouri Legislature amended § 287.040. What now appears as § 287.040.3 was previously § 287.040.4.
By the terms of its contract with FCS, however, Norfolk required FCS to carry its own workers' compensation insurance. In doing so, Norfolk availed itself of section 287.040.[3], and has not circumvented the requirements of the act. Rather, in its contract with FCS, Norfolk sought to ensure that all of FCS's employees were covered by workers' compensation insurance. The cost of this provision was paid by Norfolk in terms of the contracted price between FCS and Norfolk. Thus, Norfolk is not liable to Mr. Augur in workers' compensation as a remote employer under section 287.040.4 because Mr. Augur's immediate employer already compensated Mr. Augur for his injuries.
Id. (citation omitted). This describes the facts in this case: Defendant – the statutory employer – extracted a contractual obligation that the immediate employer – ITS – have insurance. Thus, as did Norfolk Southern, Defendant "availed itself of" the protections § 287.040.3 provides to statutory employers by taking steps to make sure that the circumstance necessary to absolve it of liability (the direct employer having insurance coverage) existed. Augur follows from a prior Missouri Court of Appeals decision. In Chouteau v. Netco Constr. , 132 S.W.3d 328 (Mo. Ct. App. 2004), the plaintiff was an employee of his own business, making him the direct employer. He did not have worker compensation insurance so he sued the statutory employer, and in the same proceeding, the statutory employer sought a "reverse judgment" against plaintiff in the same amount because § 287.040.3 (§ 287.040.4 at the time) provided – as it does now – that "[t]he liability of the immediate employer shall be primary ... and any compensation paid by those secondarily liable may be recovered from those primarily liable ...." The Missouri Court of Appeals held the statutory employer was entitled to the reverse judgment because "[t]he purpose of this subsection is to protect the employees of financially irresponsible subcontractors." Chouteau , 132 S.W.3d at 335. The statute accomplishes this purpose by (1) establishing "the order of liabilities when more than one party is potentially liable," (2) protecting the remote employer from claims if the immediate employer has insurance, and (3) giving the employee the ability to proceed against the remote employer if the immediate employer does not have insurance and at the same time giving the statutory/remote employer a right to recover from the financially irresponsible subcontractor. Id. In this way, the statute guides the employee to seek recovery from the insured employer (direct or statutory) that is highest in the hierarchy of responsibility and assigning the consequences of the "financially irresponsible subcontractor" to the statutory employer and not the injured employee.
This seems consistent with § 287.280, which was not cited in Augur. The statute provides that every employer "on either an individual or group basis " shall have insurance. This reference to a "group basis" does not appear to mean a disparate group or consortium of employers combining their interests to procure a cheaper rate of insurance because the statute further provides that "[i]f the employer or group of employers fail to" procure insurance, they are all subject to civil claims for their employees' injuries. The consequences of failing to procure insurance make sense only if a "group of employers" are somehow related with respect to the employee in question, such as in the case of joint employers or (arguably) a statutory employer and an immediate employer. But in the absence of any Missouri cases interpreting the provision (or a discussion from the parties), the Court does not rely on § 287.280.
Thus, in the present case the statute's purposes were accomplished (as they were in Augur ) because (1) the remote/statutory employer took steps to make sure that the direct/primary employer procured insurance, and (2) the primary employer's insurance was available to protect the employee. And because the party bearing primary responsibility – ITS – had worker compensation insurance, § 287.040.3 bars Plaintiff's attempt to recover from the party bearing secondary responsibility – the statutory employer.
In arguing that § 287.280 nonetheless permits him to sue Defendant, Plaintiff points to the Missouri Supreme Court's decision in Lewis v. DOT Transportation , 366 S.W.3d 522 (Mo. 2012) (en banc). In this case, Freeman was the decedent's immediate employer and DOT Transportation, ("DOT"), was the decedent's statutory employer (based on a contract whereby Freeman provided transportation services to DOT). The plaintiffs recovered worker compensation benefits from DOT; DOT could not claim the protection of § 287.040.3 because the immediate employer – Freeman – did not have worker compensation insurance. After the plaintiffs recovered benefits from DOT, the trial court dismissed the plaintiffs' separate civil suit against Freeman, holding that the plaintiffs had elected their remedy by asserting a worker compensation claim against DOT. The Missouri Supreme Court reversed, holding that § 287.280.1 "requires certain employers to carry workers' compensation," and when such an employer does not have insurance "the injured employee or his dependents may elect" one of the three options listed in § 287.280.1. Lewis , 366 S.W.3d at 525. Thus, as nothing barred the suit against Freeman, the suit was authorized. The court further observed that there was no risk of double recovery because any recovery by the plaintiff against Freeman was subject to DOT's subrogation rights. Id. at 526.
Thus, Lewis is the reverse of this case, in that Lewis involved an uninsured immediate employer and an insured statutory employer. The case does not discuss § 287.040.3 or Augur and sheds no light on whether a statutory employer is protected by that provision so long as the immediate employer has insurance. This is understandable, given that the defendant in Lewis was the immediate employer who under no circumstance could claim any benefits from § 287.040.3. Relatedly, Lewis is not inconsistent with Augur because unlike Norfolk Southern, Freeman could not point to any provision of the Act that terminated his obligations as the direct, primarily liable, employer. In contrast, Norfolk Southern – and Defendant in this case – could point to § 287.040.3's declaration that a claim cannot be asserted against the statutory employer if the immediate, primarily liable employer has insurance. Finally, in Lewis the primarily responsible entity – the direct employer – circumvented the Act by not obtaining insurance; in this case, the primarily responsible entity – ITS – did not circumvent the Act. And, as discussed above, Defendant did not circumvent the Act because it took steps to make sure ITS was insured.
Plaintiff also points to Harman v. Manheim Remarketing, Inc. , 461 S.W.3d 876 (Mo. Ct. App. 2015), but the Court is not persuaded by that case's reasoning. There, the plaintiff's immediate employer was a security company (Securitas Security Services USA, or "Securitas"), and his statutory employer was Manheim Remarketing ("Manheim"). The plaintiff injured himself on Manheim's premises while working as a security guard pursuant to a contract between Securitas and Manheim. The plaintiff recovered worker compensation benefits from Securitas and then filed suit against Manheim; he conceded that he was Manheim's statutory employee but contended that he could sue Manheim because Manheim failed to secure worker compensation insurance as required by § 287.280.1. Manheim conceded (1) it was required to carry insurance and (2) it was not an insured on Securitas's policy, but argued the plaintiff's claim was barred by § 287.040.3. Harman , 461 S.W.3d at 879. The Missouri Court of Appeals rejected this argument, holding that because Manheim did not have the required insurance, (1) Lewis and § 287.280.1 permitted the plaintiff to pursue civil claims against Manheim and (2) § 287.040.3 did not create an exception from this rule. However, Harman did not discuss Augur , and in particular did not address whether the outcome would have been different if Manheim's contract with Securitas had (as the contract did in Augur ) required the immediate employer to have insurance. Harmon also implies its conclusion is compelled by Lewis, see Harmon , 461 S.W.3d at 882-83, but as outlined earlier Lewis is distinguishable on several grounds and had no reason to consider the interplay between § 287.040.3 and § 287.280.1.
Finally, the position advanced by Plaintiff and seemingly adopted by Harmon is inconsistent with the Act in at least three respects. First, as discussed, the provisions regarding statutory employers are designed to (1) prevent employers from circumventing the Act by hiring independent contractors instead of employees (2) make sure that the primarily liable employer is insured and (3) protect secondarily liable employers from liability when the primarily liable employer is covered. Allowing Plaintiff to assert negligence claims against Defendant accomplishes none of these goals (particularly with the Switching Agreement's provision requiring ITS to have insurance), and actually thwarts the third objective. Second, the Act's purposes are not promoted by requiring the statutory employer to have insurance in a situation where the direct/primary employer already has insurance. This may be why § 287.040.3 says that the statutory employer is not subject to liability "if the employee was insured by his immediate or any intermediate employer" and does not also include a requirement that the statutory employer have insurance. Finally, unlike in Lewis , Plaintiff's interpretation of the Act would give him a windfall. Having already recovered benefits from ITS's employer, he seeks to recover for the same injuries from Defendant. The Act provides the secondary employer with the ability to seek recovery from the immediate employer; this absolved the concerns of a double recovery in Lewis. Lewis , 366 S.W.3d at 526. But in this case (1) Defendant cannot seek recovery from ITS (because that would put ITS in the position of paying twice), (2) the Act has no provision permitting Defendant to seek recovery from Plaintiff, and (3) Plaintiff does not suggest any means of preventing him from recovering twice for the same injuries.
For these reasons, the Court respectfully disagrees with Harmon and concludes that (1) Lewis does not dictate the outcome in this case, (2) Lewis did not overrule Augur , and (3) Augur correctly describes how the Act applies in this case. Because (1) Defendant, Plaintiff's statutory employer, fulfilled its obligations under the Act by contractually requiring ITS to have insurance and (2) ITS had insurance, Plaintiff's claims against Defendant are barred by § 287.040.3.
B. "Something More"
Plaintiff alternatively argues that notwithstanding the Act he can pursue common law claims because he alleged "something more" than simple negligence in that Defendant's employees directed him to proceed on the track where the empty cars were parked. He relies on Knudson v. Systems Painters, Inc. , 634 F.3d 968 (8th Cir. 2011), which discusses when the Act bars a claim against a supervisor or co-worker (as opposed to the employer) and when pleading "something more" than simple negligence will permit such a suit. (Doc. 62, pp. 23-24.) However, Knudson is readily distinguishable, as it was not examining whether the Act permitted a claim against the employer; as stated, it examined whether the Act permitted a claim against the plaintiff's supervisor. Therefore, even if the circumstances would permit Plaintiff to assert a claim against Defendant's employees (which is an issue the Court does not address), this does not mean Plaintiff could assert a negligence claim against Defendant.
For an updated discussion of Missouri law on this issue, see Peters v. Wady Industries, Inc. , 489 S.W.3d 784 (Mo. 2016) (en banc).
C. Disclaiming Statutory Employer Status
Finally, Plaintiff contends that Defendant disclaimed its status as Plaintiff's statutory employer in the Switching Agreement. The Switching Agreement specifies that ITS's employees "shall be and remain at all times when providing services under this Agreement the employees, agents and subcontractors of [ITS], and they shall not be considered to be employees of [Defendant] for any purpose." (Doc. 55-2, p. 9 (Switching Agreement, ¶ 6.1).) With little explanation, Plaintiff suggests that this means Defendant has disclaimed its right or ability to assert that Plaintiff was its statutory employee. (Doc. 62, pp. 12-13, 19.) But in context this provision merely establishes that as between ITS and Defendant, ITS's employees will not have an employee/employer relationship with Defendant – that ITS is their sole immediate employer – and establishes matters such as which entity must pay ITS's employees, who has the authority to hire and fire, and so forth. It does not address whether ITS's employees are deemed employees by virtue of § 287.040, and it is doubtful that an entity could disclaim such a relationship given that it is imposed by the Act. Therefore, the Switching Agreement does not bar Defendant from asserting that it was Plaintiff's statutory employer.
III. CONCLUSION
For these reasons, Defendant's Motion for Summary Judgment, (Doc. 54), is GRANTED .