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Oberreiter v. Fullbright Trucking Co.9/23/2003
ot have jurisdiction over the case, citing the primary jurisdiction doctrine. Quoting from the Fund's argument in its third point on appeal,
It would be appropriate to remand to the Commission for a decision on the correctness of the Circuit Court's order. However, that would be a waste of judicial and administrative resources. As discussed in Point II, the Circuit Court, in fact, had jurisdiction in the wrongful death suit and was therefore able to enter its Judgment.
We note that the Commission had the opportunity to address the merits of claimants' claim, and determined that it did not have subject matter jurisdiction over the claim to determine if the statute of limitations was tolled under section 287.440 until and unless the circuit court dismissed the wrongful death action for the reasons set out in section 287.440. This Court in Oberreiter I essentially agreed with the Commission, and dismissed the appeal on the ground that it was not a final award. The Commission also held in its 1998 Award that in determining whether or not it had jurisdiction, the circuit court would have to make the factual determination as to whether or not Fullbright Trucking was insured on September 22, 1987.
The circuit court had the power to determine that it lacked jurisdiction. The court's judgment dismissing the case for lack of jurisdiction did not impinge on Commission's primary jurisdiction. As the Commission noted in its 2003 Award, there is nothing in the record that indicates that the circuit court's order dismissing the wrongful death action was improper or invalid. Point denied.
The award of the Commission is affirmed.
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