GARY W. LYNCH, J. — Opinion author
Steve Harman appeals the trial court's grant of summary judgment in favor of Manheim Remarketing, Inc. ("Manheim"), holding that Harman's civil action against Manheim for his injuries from a fall on Manheim's premises was barred by The Workers' Compensation Law, see sections 287.010-.811. Harman claims that Manheim was not entitled to summary judgment because section 287.280.1,
Harman filed a personal injury action in the trial court claiming negligence in connection with injuries he sustained as a result of his slip and fall on black ice on Manheim's premises on February 1, 2010, naming Manheim and one of Manheim's employees as defendants.
Thereafter, Manheim filed a motion for summary judgment asserting as its legal basis that Harman's "negligence claim against Manheim fails as a matter of law as Manheim is the statutory employer[
In his response, Harman conceded that "he was a statutory employee of Manheim at the time of his fall." Harman asserted that, nevertheless, because he could "elect to sue Manheim to recover damages for personal injury if Manheim failed to comply with R.S.Mo. § 287.280 by failing to secure workers' compensation insurance that covered Steve Harman[,]" Manheim's motion for summary judgment must be denied due to Manheim's failure to plead and prove that it complied with the insurance requirements of section 287.280.1.
In its reply, Manheim admitted it "was not an insured under Securitas' Workers' Compensation Insurance Policy[,]" that Harman made a workers' compensation claim only against Securitas, and that the Stipulation for Compromise Settlement of that claim lists only Securitas as the employer. Although Manheim did not dispute that it was required under section 287.280.1 to carry workers' compensation insurance, it reasoned that "[n]othing in [section 287.280.1] requires a statutory employer to prove that it provided worker's compensation insurance to be allowed immunity in a civil action pursuant to" section 287.120, in that "[s]ection 287.280 simply states that all employers must carry worker's compensation insurance."
The trial court granted Manheim's motion for summary judgment and entered judgment in favor of Manheim accordingly. Harman timely appeals that judgment.
In a single point relied on, Harman asserts that "[t]he trial court erred in granting Manheim's Motion for Summary Judgment based upon [Manheim's] affirmative defense of exclusive remedy" pursuant to section 287.120, "because every employer subject to Chapter 287 must purchase insurance[,]" as provided in section 287.280.1, "in order to receive the benefit of the exclusive remedy shield under" section 287.120,
"Summary judgment is designed to permit the trial court to enter judgment, without delay, where the moving party has demonstrated, on the basis of facts as to which there is no dispute, a right to judgment as a matter of law. Rule 74.04." ITT Commercial Fin. Corp. v. Mid-Am. Marine Supply Corp., 854 S.W.2d 371, 376 (Mo. banc 1993). "The key to summary judgment is the undisputed right to judgment as a matter of law, not simply the absence of a fact question." Id. at 380.
Id. at 376 (internal citations omitted).
The burden is on the summary judgment movant to establish a right to judgment as a matter of law "flowing from facts about which there is no genuine dispute." Id. at 378. "The non-movant never needs to establish a right to judgment as a matter of law; the non-movant need only show that there is a genuine dispute as to the facts underlying the movant's right to judgment." Id. at 382-82.
In reviewing the propriety of the grant of the motion for summary judgment, this court first determines whether the movant is a claimant or a defending party. Id. at 380. "A claimant is one who `seeks to recover,' without regard to whether recovery is sought by claim, counterclaim, cross-claim or declaratory judgment. Rule 74.04(a)." ITT Commercial Fin. Corp., 854 S.W.2d at 380. "A `defending party' is one against whom recovery is sought. Rule 74.04(b)." ITT Commercial Fin. Corp., 854 S.W.2d at 380. Here, Harman sought recovery for personal injury against Manheim. Manheim answered and asserted affirmative defenses but did not file a counterclaim or cross-claim. As to Manheim's motion for summary judgment, therefore, Manheim is a defending party and Harman is a claimant.
When the party moving for summary judgment is a defending party, as is the case here, the movant's right to summary judgment can be established by showing one of the following:
Id. at 381. Manheim's motion, based upon its workers' compensation exclusive remedy affirmative defense barring this civil action, falls within the third category.
"A defendant has the burden to prove all affirmative defenses." Warren v. Paragon Techs. Group, Inc., 950 S.W.2d 844, 846 (Mo. banc 1997). A defendant may establish a right to summary judgment by showing that there is no genuine dispute as to the existence of the facts required to support its affirmative defense. ITT Commercial Fin. Corp., 854 S.W.2d at 381. The next consideration, therefore, in this court's determination regarding the propriety of the grant of summary judgment here, is "whether the uncontroverted material facts established [Manheim's] right to judgment as a matter of law."
"The exclusivity provision of Chapter 287 is found in Section 287.120." Amesquita v. Gilster-Mary Lee Corp., 408 S.W.3d 293, 299 (Mo.App.2013). Section 287.120 provides, in pertinent part:
(Italics added).
Manheim claimed in the trial court and asserts here that section 287.040.1 makes it an "employer," as that term is used in section 287.120, and therefore it is entitled to assert the exclusivity provisions in that section. Section 287.040.1 "is designed to prevent employers from evading the Act's requirements by hiring independent contractors to perform the work the employer otherwise would hire ordinary employees to perform." McCracken v. Wal-Mart Stores East, LP, 298 S.W.3d 473, 480 (Mo. banc 2009). As relevant here, section 287.040.1 provides:
(Emphasis added). The uncontroverted facts show and Harman admits and concedes that Manheim had work done under contract on its premises that was an operation of the usual business which Manheim there carried on, thereby meeting all the conditions precedent under this subsection for Manheim to be "deemed an employer." Therefore, Manheim is correct that it is an "employer" as that term is used in section 287.120. Shaw v. Mega Indus., Corp., 406 S.W.3d 466, 468 (Mo.App.2013); Sexton v. Jenkins & Assocs., Inc., 41 S.W.3d 1 (Mo. App. 2000). By that same analysis, however, Manheim is also an "employer" as that term is used in section 287.280.1.
Section 287.280.1 provides:
(Emphasis added). This section requires the employer to either carry insurance or qualify as a self-insurer.
Therefore, as a general proposition, employers are afforded the protection of the exclusivity provisions of section 287.120. Shaw, 406 S.W.3d at 468. Those provisions generally limit an injured employee's remedies to those provided under Chapter 287 and exclude that employee from pursuing a civil action. Section 287.120.2. If an employer, however, fails to insure its full liability under the Workers' Compensation Law as required by section 287.280.1, the express and plain language of that section confers upon the injured employee or his dependents the option to file a civil action against that employer. Lewis v. Gilmore, 366 S.W.3d 522, 525 (Mo. banc 2012). Moreover, in addition to granting the employee that optional remedy, which essentially rescinds the general exclusivity provided under section 287.120, if the employee exercises that option, the employer is stripped of several common-law defenses that might otherwise be available but for that employer being subject
Manheim, nevertheless, urges us to distinguish and depart from the clear holding in Lewis by reading into the plain language of section 287.280.1 an exemption to the insurance requirement when the employer has no liability to the employee under the last sentence of section 287.040.3. That sub-section of section 287.040 provides
(Emphasis added). Manheim argues:
We disagree. Manheim's compliance with the section 287.280.1 insurance requirement is not only highly relevant, it is dispositive.
"The primary rule of statutory construction is to ascertain the intent of the legislature from the language used, to give effect to that intent if possible, and to consider the words used in their plain and ordinary meaning." Wolff Shoe Co. v. Dir. of Revenue, 762 S.W.2d 29, 31 (Mo. banc 1988). "`The legislature is presumed to have intended what the statute says, and if the language used is clear, there is no room for construction beyond the plain meaning of the law.'" State ex rel. KCP & L Greater Mo. Operations Co. v. Cook, 353 S.W.3d 14, 17 (Mo.App.2011) (quoting State v. Sharp, 341 S.W.3d 834, 839 (Mo. App.2011)).
Workers' compensation laws are to be strictly construed. Section 287.800, RSMo Cum.Supp.2009. In strictly construing a statement, we presume nothing that is not expressed. Templemire v. W & M Welding, Inc., 433 S.W.3d 371,381 (Mo. banc 2014).
Manheim concedes that under section 287.040.3 it had secondary liability for Harman's injuries. Manheim also acknowledges that section 287.280.1 requires it to insure that liability because it falls within its "full liability" under Chapter 287. Nothing in the expressed plain language of section 287.280.1 relieves Manheim from that insurance requirement in the event that another employer with primary liability pays the workers' compensation claim.
A similar argument was made by the employee in Shaw related to the applicability of the exclusivity provisions of section 287.120. 406 S.W.3d at 469. There, "[r]elying on the final sentence of § 287.040.3, and the opening clause of § 287.120.1,
The opening clause of section 287.120.1 requiring exclusivity by the employee — "[e]very employer subject to the provisions of this chapter" — as considered in Shaw, is identical to the opening clause of section 287.280.1 requiring insurance by the employer. For the same plain language reason that the Shaw court would not read an "actual payment of workers' compensation benefits" requirement into the plain wording of section 287.120.1 based upon this phrase and its interplay with the last sentence in section 287.040.3 for the benefit of the employee as to exclusivity, we cannot read such a requirement into the identical plain wording of section 287.280.1 for the benefit of the employer as to insurance. Under the express and plain wording of section 287.280.1, Manheim was required to insure its full liability under the Workers' Compensation Law or suffer the provided penalty, which included Harman's election to file a civil action against it. Lewis, 366 S.W.3d at 525. The strict construction of the express and plain language of this section precludes us from presuming or reading into it anything otherwise. Templemire, 433 S.W.3d at 381.
Manheim had within its possession and control all the knowledge, information, and documentation necessary to easily demonstrate its compliance with the insurance requirement of section 287.280.1, yet it did not to do so in its motion for summary judgment.
The trial court's grant of summary judgment in favor Manheim is reversed, and the cause is remanded to the trial court for further proceedings consistent with this opinion.
NANCY STEFFEN RAHMEYER, J. — concurs
DON E. BURRELL, J. — concurs
Sexton, 41 S.W.3d at 6-7. While neither Shaw nor Sexton address or consider the section 287.280.1 employer insurance requirement, the analysis in both cases supporting that actual liability is not required to apply the section 287.120 exclusivity requirement to employees also supports that actual liability is not required to apply the section 287.280.1 insurance requirement to employers.
