Missouri Employers Mutual Insurance Company, Respondent v. Lonnie Nichols, and Lonnie Nichols Trucking and Excavating Company, Inc., Defendants and Jade Nowlin, Appellant.
WD 63063      Edwin H. Smith, Chief Judge

Ronnie Nowlin died in a work-related accident that occurred while he was working for Lonnie Nichols Trucking and Excavating, Inc. MEMIC paid workers' compensation benefits pursuant to the Act. A wrongful death suit was filed against a co-worker, Lonnie Nichols, the sole shareholder of Nichols Trucking and Excavating, Inc. Lonnie Nichols tendered the defense and sought indemnification from MEMIC. MEMIC filed a declaratory judgment action asserting that Nichol's alleged negligence in the wrongful death action was not covered under their Employers' Liability Insurance policy.

The court agreed with the trial court that granted summary judgment in favor of MEMIC. The court concluded that the language of the policy was unambiguous and clearly spelled out that only Lonnie Nichols Trucking and Excavating, Inc. was a named insured.

Can a claimant/plaintiff in a personal injury action, upon dismissal of his original suit against his/her employer based upon lack of subject matter jurisdiction, file a second suit?

Kevin Dale Sexton, Appellant v. Jenkins & Associates, Inc., Defendant, Steve Sloniker, et al., Respondents.
SC 85803      Michael A. Wolff, Judge

Sexton's first suit against his employer was dismissed based upon the exclusive jurisdiction of the workers' compensation act. The court of appeals affirmed the dismissal “without prejudice” in that case. Sexton filed a second suit pleading new allegations. Jenkins defended that the doctrine of issue preclusion or collateral estoppel barred the second suit. The circuit court overruled the motion to dismiss on this ground but granted a motion to dismiss based upon the failure of the second suit to allege “something extra” beyond the duty of the employer to provide a safe working place. Sexton appealed this ruling.

The court found that the dismissal “without prejudice” precluded Sexton from bringing this second suit but was intended solely to grant the claimant leave to file “his claim in the proper forum - the Labor and Industrial Relations Commission.” Not reached by the Supreme Court was the constitutional challenge to section 287.120 RsMo.

What date should be used in cases of repetitive trauma for purposes of second injury fund liability for “pre-existing” disability?

Michael Garrone, Claimant/Respondent v. The Treasurer of the State of Missouri, as Custodian of the Second Injury Fund, Additional Party/Appellant.
ED 83906      Kathianne Knaup Crane, Judge

Claimant filed a claim for bilateral carpal tunnel syndrome (CTS) under a date of November 1998 based upon a diagnosis of the condition. The claim was filed in August of 2000 and alleged liability against the SIF for prior injuries sustained in an auto accident that occurred in 1965. The claimant sustained serious injuries to his left knee in April of 1999 and was forced to retire in large part based upon his knee injury in June of 1999. The claimant did not undergo surgery for his wrist until December 1999.

After settling against the Employer, the case proceeded to a hearing against the SIF. An amended claim for compensation was filed alleging that the claimant was permanently and totally disabled. The ALJ denied the claim based upon the fact that the claim against the employer by reference to the claim and the stipulation for settlement precluded consideration of the serious knee injury claimant sustained. The Commission reversed and awarded benefits against the SIF establishing that the date of the first surgery for the claimant's CTS was to be used in assessing pre-existing disability. The court affirmed the commission's decision and logic, “…a stipulation as to a date of exposure is not a stipulation to a date of disability.”

For purposes of establishing whether a driver is an owner-operator and is therefore to be excluded as an employee under section 287.010.1 RsMo, how is “owner” to be defined?

Richard Nunn, Respondent, v. Treasurer of the State of Missouri-Custodian of the Second Injury Fund, Defendant, v. C.C. Mid West, Appellant.
WD 64027     Thomas H. Newton, Judge

Claimant, a truck driver, entered into a lease-purchase agreement with a subsidiary of C.C. Midwest that provided: “…upon thirty days notice, the Lessee shall have the option of purchasing the Tractor by paying Lessor in cash the stipulated Value as of the date of closing...”

Claimant entered into a “Non-Exclusive Operating Agreement with Independent Contractor (Agreement)” that provided that the “Contractor shall provide evidence for workers' compensation insurance…” The claimant failed to purchase any insurance and sustained an injury while making a delivery for C.C. Midwest.

The court deferred to the Commission that found that despite the explicit language in the contract, the claimant was an employee of C.C. Midwest. They found that the exclusion in 287.020.1 that excluded truck drivers who are “owner-operators” did not apply as the claimant did not own the tractor. The court refused to apply the broader definition of owner contained in Chapters 301, 302 and 303 RsMo.

Not reached, as an independent basis for liability, was whether the claimant could have been found to be a statutory employee of C.C. Midwest if the exclusion of 287.010.1 was found to apply.