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Logan v. Show-Me Power Electric Cooperative11/25/2003
red by this court. State ex rel. Nixon v. Am. Tobacco Co., Inc., 34 S.W.3d 122, 129 (Mo.banc 2000). "When counsel. . . do not sufficiently advise the court of the contentions asserted and the merit thereof, the court is left with the dilemma of deciding that case (and possibly establishing precedent for future cases) on the basis of inadequate briefing and advocacy or undertaking additional research and briefing to supply the deficiency." Thummel v. King, 570 S.W.2d 679, 686 (Mo.banc 1978). It is not this court's function to serve as an advocate for Plaintiffs, and it would be unfair to other parties if it were otherwise. Id. at 686 .
Point II is denied.
Point IV: Alleged Error In Not "Staying" Suit Against Irby
Plaintiffs' fourth point maintains the trial court erred in dismissing their suit against Irby. Plaintiffs allege that their suit against Irby sounds in intentional tort, not negligence. They acknowledge that, per Killian, the question of whether an employee's injuries were the product of an accident or an intentional act by the employer lies within the exclusive jurisdiction of the Labor and Industrial Relations Commission.
Because of Killian, they filed a claim with the Division of Workers' Compensation alleging that Logan's death did not result from an accident, but was the result of an intentional act. They insist, however, that Killian does not mean the two cases, i.e., the wrongful death suit and the workers' compensation claim, cannot be pending at the same time. Plaintiffs argue that the trial court should have stayed or held in abeyance the wrongful death suit until the commission resolved the "accident versus intentional act" issue. There is merit to this argument.
Our review of the trial court's decision to dismiss for lack of subject matter jurisdiction is for an abuse of discretion. Jenkins v. Croft, 63 S.W.3d 710, 712 (Mo.App. 2001). Judicial discretion is abused only where the ruling is clearly against the logic of the circumstances before the court and is so arbitrary and unreasonable as to shock the sense of justice, indicating a lack of careful consideration. Id. at 713 .
Irby relies heavily on Killian as support for the correctness of the trial court's action. However, the Killian case did not plow new ground. To the contrary, Killian relied " the strength of . . . recent precedent," specifically State ex rel. McDonnell Douglas Corp. v. Ryan, 745 S.W.2d 152 (Mo.banc 1988). The court held that the Commission has sole jurisdiction to decide if an employee's on-the-job injury is the product of accident or the employer's intentional act. Killian, 802 S.W.2d at 161 .
Neither Killian nor Ryan addressed the question presented here, namely, whether an intentional tort case can be filed and left pending in the circuit court until the Commission decides the "accident versus intentional conduct" issue. Cases exist, however, that shed light on the issue.
In State ex rel. Kansas City Stock Yards v. Clark, 536 S.W.2d 142 (Mo.banc 1976), the wife and minor children of Roy Ruis (deceased) unsuccessfully sought to recover compensation under the Kansas Workmen's Compensation Law. More than a year after Ruis' death, they filed a wrongful death lawsuit in Missouri against Ruis' employer. Via a writ of prohibition, the employer asked that the trial judge be prevented from proceeding further in the wrongful death lawsuit. The writ was issued despite an argument by the Ruis dependents that filing of the claim for compensation in Kansas tolled the Missouri statute of limitations. The Kansas City Stockyards court explained: "There was no reason why [the wrongful death suit] could not have been timely filed
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