Death Claim OK Against Second Employer

JEFFERSON CITY, Mo. (CN) - The family of a man killed in a work-related vehicle accident can pursue a wrongful-death complaint against one of his employers after accepting a workers' compensation claim against another employer, the Missouri Supreme Court ruled.

Lonnie Lewis was killed when the tractor-trailer he was riding in rolled over.

The driver, Nathan Gilmore, was working for Buddy Freeman dba R&F Trucking. Freeman had a contract with DOT Transportation to operate the rig.

Freeman did not carry mandatory workers' compensation insurance, but DOT did.

Lewis' family filed a workers' compensation claim against DOT and a wrongful death complaint against Freeman and Gilmore.

An administrative judge found that Lewis was an employee of Freeman, but since Freeman didn't carry the legally required workers' compensation insurance, Lewis was DOT's statutory employee. The administrative law judge ordered DOT to pay funeral and death benefits.

DOT intervened in the Lewis family's wrongful death claim against Freeman and Gilmore. But Linn County Circuit Court granted summary judgment in favor of Freeman and Gilmore, finding that the wrongful-death action was barred because the Lewis family had made an election of remedies when it got the workers' compensation award.

The Lewis family and DOT appealed, and in a 4-3 decision, the Missouri Supreme Court reversed. The Supreme Court found that cases prohibiting the Lewis family from collecting both a workers' compensation claim and a wrongful death claim did not apply, because the actions were not against the same employer.

"First, as established above, the plain language of section 287.280.1 provides that the Lewises 'may elect' to file a civil suit against an uninsured employer such as Freeman," Chief Justice Richard B. Teitelman wrote. "That is what the Lewises did in this case.

"Second, in cases such as Bailey, the employee or his dependents filed a workers' compensation claim and a civil action against a single uninsured employer. In that situation, consistent with the plain language of section 287.280.1, courts hold that the employee or his dependents 'may elect' either a workers' compensation claim or a civil suit but cannot recover on both claims against the same uninsured employer. In contrast, the Lewises recovered workers' compensation benefits from DOT and also, pursuant to section 287.280.1, have elected to file a civil suit against Freeman due to his failure to carry workers' compensation insurance. There is no issue of an impermissible double recovery because any recovery by the Lewises in the civil action would be subject to DOT's subrogation rights."

Judges Zel M. Fischer, Laura Denvir Stith and George W. Draper III concurred.

Judges Patricia Breckenridge, William Ray Price Jr. and Mary R. Russell dissented. They said the statute cannot be interpreted without consideration of the election of remedies doctrine or other workers' compensation laws.

"The legislative intent of section 287.280.1 is to ensure an avenue for a workers' compensation claimant to pursue compensation when an employer fails to carry workers' compensation insurance," Russell wrote. "But the statute's purpose is not to allow an additional avenue to pursue double compensation for the same injury simply because the immediate employer fails to carry workers' compensation insurance and there is another employer who can be pursued for a remedy. Instead, considering the compensation-recovery remedy available under section 287.040 together with the language of section 287.280.1, the optional remedy that remains in this case is not that the Lewises can collect another monetary award via a civil action but rather is that the insured statutory employer will seek recovery against the uninsured immediate employer."

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