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Logan v. Show-Me Power Electric Cooperative11/25/2003
Opinion Vote: AFFIRMED IN PART; REVERSED IN PART AND REMANDED.
Parrish, P.J., and Rahmeyer, C.J., concur.
Opinion:
John Logan, III, and Christina Logan ("Plaintiffs") are the parents of John Logan, IV ("Logan"), who was fatally electrocuted while working for Irby Construction Company ("Irby"). At the time of Logan's death, Irby was an independent contractor working for Sho-Me Electric Cooperative ("Sho-Me") per a written construction contract. Plaintiffs filed a wrongful death lawsuit naming as defendants (1) their son's employer, Irby; (2) Gary Gorman ("Gorman"), Irby's job superintendent ; (3) the landowner, Sho-Me; and (4) Ron Marlin ("Marlin"), Sho-Me's engineer on the project.
The trial court sustained Irby's and Gorman's motions to dismiss based upon a lack of subject matter jurisdiction, believing that Plaintiffs' exclusive remedy against Irby and Gorman lies pursuant to the Workers' Compensation Act. The court also sustained a motion for summary judgment in favor of Sho-Me and Marlin. This appeal followed. We affirm in part; we reverse in part and remand. FACTSIn June 1997, Sho-Mo entered into a standard rural utilities service contract with Irby. The contract required Irby to install 63.8 miles of fiber-optic cable near existing power lines and perform "associated structure reinforcement on existing energized . . . lines" owned by Sho-Me in Phelps, Pulaski, and Maries counties. The contract provided, inter alia, that Irby was to maintain workers' compensation insurance covering all of its employees. Irby complied with that contract provision; consequently, a workers' compensation policy insuring Irby's employees was in effect when Logan was fatally electrocuted on November 11, 1997.
At the time of his death, Logan was working for Irby near one of Sho-Me's "energized 69 KV lines." In part, Plaintiffs' petition alleged Logan's job assignment on November 11 was to "conduct . . . fiber optic cable installation tasks" on Sho-Me's line, such as attaching cable to the structure (also known as "clipping"). They further alleged that both Irby and Sho-Me required Logan to work in "close proximity" to the subject line.
On May 20, 1999, Plaintiffs filed a claim with the Division of Workers Compensation ("Division") in which they alleged Irby "intentionally . . . exposed [Logan] to the hazard of electrocution." After making specific factual allegations, Plaintiffs asked Division to find that "the acts of [Irby] were, in fact intentional and create a KILLIAN cause of action " and requested leave "to proceed directly against the employer in the Circuit Court of Camden County for the wrongful death of [Logan] which occurred as a direct and proximate result of the intentional acts of [Irby]."
At essentially the same time, Plaintiffs sued Irby and Sho-Me, seeking damages for the alleged wrongful death of their son. Ultimately, in their second amended petition, they added Marlin and Gorman as defendants.
Irby and Gorman moved to dismiss Plaintiffs' petition on the ground that the trial court lacked subject matter jurisdiction. They claimed that the Workers' Compensation Act provided the exclusive remedy available to Plaintiffs for the death of Logan and served to insulate them from other liability for his death. Sho-Me and Marlin filed motions for summary judgment that also invoked the exclusivity provisions of the law as grounds for a judgment favorable to them. The trial court sustained Defendants' respective motions and entered judgment for Defendants. This appeal followed. DISCUSSION AND DECISION For the most part, the exclusivity language that undergirds the trial court's judgment is found in section 287.120, as
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