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Romero v. Kansas City Station Corporation3/4/2003
defense, is whether there was sufficient evidence for the court to have found the fourth prong of the usual-course-of-business test.
In seeking to dismiss for lack of subject matter jurisdiction, based on the Workers' Compensation defense, the respondent had the burden of proving by a preponderance of the evidence that the appellant was injured in the usual course of the respondent's business. Burns, 976 S.W.2d at 641. As we discuss, supra, to do that, it was required to prove, inter alia, that if there had not been a contract between the respondent and Excel to provide linen service to the Station Casino complex, the respondent would have been required to hire permanent employees to do the work. A careful and detailed review of the record indicates that the respondent did not offer any evidence, as permitted under Rule 55.27 or Rule 55.28, establishing that fact. See DiMaggio v. Johnston Audio/D & M Sound, 19 S.W.3d 185, 190 (Mo. App. 2000); Parker, 914 S.W.2d at 31-32; Bass, 911 S.W.2d at 621 (stating that a statutory employer's usual course of business is those activities "the performance of which would require the statutory employer to hire permanent employees absent the agreement" between the employer and the independent contractor). There was no evidence presented that permanent employees of the respondent ever performed the work performed by the appellant or that, after the appellant's injury , they hired permanent employees to do the work performed by the appellant. Thus, because the respondent failed to carry its burden of proof as to its motion seeking to dismiss the appellant's tort action for lack of subject matter jurisdiction, based on the Workers' Compensation defense, the trial court abused its discretion in "dismissing" the appellant's tort action for lack of subject matter jurisdiction.
Because our resolution of Point I is dispositive of the appellant's appeal, we need not address Point II.Conclusion The judgment of the circuit court effectively dismissing the appellant's personal injury tort action for lack of subject matter jurisdiction is reversed, and the cause is remanded to the court for further proceedings consistent with this opinion.
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