Opinion
No. ED75094
OPINION FILED: May 18, 1999
APPEAL FROM THE CIRCUIT COURT OF CITY OF ST. LOUIS, HONORABLE JOHN J. RILEY, JUDGE.
JoAnn M. Tracy, Mark G. Arnold, 100 N. Broadway, Ste. 1300, St. Louis, Mo 63102, for appellant.
Ann. G. Dalton, 7730 Carondelet, Suite 200, Clayton, MO 63105, for respondents.
National Super Markets, Inc. ("supermarket") appeals the trial court's judgment denying its petition for a writ of prohibition. Supermarket sought to prevent the administrative law judge ("ALJ") from proceeding further on a workers' compensation claim in that the employee's action was untimely filed under the six-month corporate dissolution statute. The trial court refused to issue a permanent writ, reasoning "it must construe the procedures for disposing of claims against dissolved corporations in a manner that does not violate the public policy of compensating employees for job related injuries." The court applied the two-year statute of limitations found in the Missouri Workers' Compensation Act. We reverse and remand.
John Indelicato ("employee") injured his back while working at supermarket's store in May 1995. Supermarket, a Michigan corporation who was self-insured for workers' compensation purposes, paid him temporary total disability and medical benefits.
The corporation dissolved in September 1995. As part of the winding up process, supermarket notified potential claimants of its dissolution. In a letter, it informed claimants of the procedures they must follow to properly notify supermarket of their claims. The letter further stated the information must be received by supermarket no later than March 29, 1996, which was pursuant to the Michigan corporate dissolution statutes and six months from the date of the letter. Supermarket maintains it mailed one of these letters to employee, affixed with proper postage, to his last known address. It was never returned to supermarket as undeliverable. Employee alleges he never received the letter.
Employee filed a workers' compensation claim against supermarket on November 15, 1996, nearly eight months after the deadline imposed in supermarket's letter to employee. Supermarket filed a motion to dismiss the claim as untimely under the Michigan six-month corporate dissolution statute. The ALJ denied the motion.
Supermarket then filed a petition for a writ of prohibition in the circuit court, seeking to prevent the ALJ from taking further action on the claim. After the court granted a preliminary writ, supermarket filed a motion for summary judgment. The court denied this motion and refused to make the writ permanent, finding the claim was timely filed pursuant to the two-year statute of limitations in the Missouri Workers' Compensation Act. This appeal followed.
Appeal to this court is the proper procedure to obtain review when the lower court has preliminarily granted prohibition but has refused to make the order permanent. Southwestern Bell v. Com'n on Human Rights, 863 S.W.2d 682, 685 (Mo. App. 1993). A writ of prohibition does not issue as a matter of right, and whether a writ should be issued in a particular case is a question left to the sound discretion of the court to which application has been made. State v. Fairness in Const. Bd., 960 S.W.2d 507, 511 (Mo. App. 1997).
On appeal, supermarket argues the trial court erred in denying it a permanent writ of prohibition because the ALJ lacked jurisdiction in that claimant's action was untimely under the six-month corporate dissolution statute. The ALJ counters the trial court did not err in denying the permanent writ because employee's action was timely filed under the two-year statute of limitations of the Missouri Workers' Compensation Act.
The corporate dissolution statutes of Michigan and Missouri are almost identical. Michigan's section 450.1841a M.C.L.A. (Supp. 1995) states in pertinent part:
Sec. 841a. (1) The dissolved corporation may notify its existing claimants in writing of the dissolution at any time after the effective date of the dissolution. The written notice shall include all of the following:
(a) A description of the information that must be included in the claim . . .
(b) A mailing address where a claim may be sent.
(c) The deadline, which may not be less than 6 months from the effective date of the written notice, by which the dissolved corporation must receive the claim.
(d) A statement that the claim will be barred if not received by the deadline.
* * * * * *
(3) A claim against the dissolved corporation is barred if either of the following applies:
(a) If a claimant who was given written notice under subsection (1) does not deliver the claim to the dissolved corporation by the deadline.
(b) If a claimant whose claim was rejected by a written notice of rejection by the dissolved corporation does not commence a proceeding to enforce the claim within 90 days from the effective date of the written notice of rejection.
Missouri's statute, section 351.478 RSMo (Supp. 1995), provides in pertinent part:
2. A dissolved corporation shall notify its known claimants in writing of the dissolution at any time after its effective date. The written notice must:
(1) Describe information that must be included in a claim;
(2) Provide a mailing address where a claim may be sent;
(3) State the deadline, which may not be fewer than one hundred eighty days from the effective date of the written notice, by which the dissolved corporation must receive the claim; and
(4) State the claim will be barred if not received by the deadline.
3. Other rules of law . . . to the contrary notwithstanding, a claim against a corporation dissolved without fraudulent intent is barred:
(1) If a claimant who was given written notice under subsection 2 of this section does not deliver the claim to the dissolved corporation by the deadline;
(2) If a claimant whose claim was rejected by the dissolved corporation does not commence proceedings to enforce the claim within ninety days from the effective date of the rejection notice.
We find the trial court erred in applying the Missouri Workers' Compensation Act's statute of limitations rather than either corporate dissolution statute. Statutes relating to the time for bringing an action against a dissolved corporation are not statutes of limitation, but rather corporate survival statutes.National Super Markets, Inc. v. Sweeney, 949 S.W.2d 289, 292 (Mo. App. 1997). The distinction between statutes of limitation and survival statutes is that the former affects the time in which a stale claim may be brought, while the latter gives life for a limited time to a right or claim that would have been destroyed entirely but for such statutes. Martin v. Texas Woman's Hosp., Inc., 930 S.W.2d 717, 720 (Tex. App. 1996). Survival statutes establish the time period when a dissolved corporation ceases to be an entity that can be sued. National, 949 S.W.2d at 292. The procedures in corporate dissolution statutes must be followed when filing claims against dissolved corporations, for in the absence of such statutes, the cause of action does not exist.
Employee argues we must not construe the law in any way that would defeat an employee's right to bring a workers' compensation claim. Employee overlooks the fact there is nothing to construe, as the law is clear. His cause of action would not even exist but for the corporate dissolution statutes; therefore, the procedures in those statutes must be followed when filing any claim against a dissolved corporation.
Employee further argues supermarket received notice of his claim when he filed his earlier claim for temporary disability. Therefore, supermarket obtained the information about his claim contemplated by the corporate dissolution statutes, and he should be allowed to proceed on his claim for permanent disability.
Employee's argument is misplaced. The procedures provided in Missouri's and Michigan's corporate dissolution statutes apply to claims whose existence is known by a corporation. As such, notice of claims is presupposed. Both states provide separate procedures and time constraints for unknown claims. See Section 450.1842a M.C.L.A. (Supp. 1995) and Section 351.482 RSMo (Supp. 1995). The time constraints for known claims help dissolved corporations wind up their affairs in a defined period of time and in an expeditious and efficient manner.
Supermarket states it addressed its letter to employee at his last known address. Although employee maintains he never received the letter, a presumption exists that a letter duly mailed has been received by the addressee. Insurance Placements, Inc. v. Utica Mut. Ins. Co., 917 S.W.2d 592, 595 (Mo. App. 1996). The presumption is rebuttable, and when proof of proper mailing is adduced, it may be rebutted by substantial evidence that it was not, in fact, received. Id.; Mercantile Bank and Trust Co. v. Vilkins, 712 S.W.2d 1, 3 (Mo. App. 1986). Evidence of non-receipt, however, does not nullify the presumption, but leaves the question for the determination of the fact-finder under all of the facts and circumstances of the case. Id.
In this case, the trial court did not determine whether employee actually received the letter from supermarket. Therefore, we remand to the trial court to make this determination. If it is found that employee actually received the letter, then employee's claim will be barred, as there is no dispute he did not respond to supermarket's letter within the six-month time period. If the trial court determines employee did not actually receive the letter, then his workers' compensation claim will not be barred.
The judgment of the trial court is reversed and remanded.
Mary K. Hoff, P.J., and Gary M. Gaertner, J., concur.