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Logan v. Show-Me Power Electric Cooperative11/25/2003
in Missouri. There could only be one recovery but both matters could have been pending at the same time." 536 S.W.2d at 146 . (Emphasis supplied.)
In Lamar v. Ford Motor Co., 409 S.W.2d 100 (Mo. 1966), the issue was whether the injured party was an employee. For that reason, the Lamar court concluded the "primary jurisdiction" doctrine, which was later applied in Killian, was not implicated. Lamar, 409 S.W.2d at 107. However, in analyzing the primary jurisdiction rule and when it applies, Lamar cited with approval Somma v. United States, 283 F.2d 149 (3rd Cir. 1960):
"The most closely analogous situation in which we have found the doctrine applied was in Somma . . . . There a federal employee sued for personal injuries under the Federal Tort Claims Act. The defense was interposed that plaintiff's exclusive remedy was under the Federal Employees' Compensation Act. Applying the doctrine of primary jurisdiction, the court ordered the tort action stayed until the plaintiff had pursued his remedies under the Federal Employees' Compensation Act."
Id. at 106.
In State ex rel. Riss Int'l Corp. v. Sanders, 604 S.W.2d 632 (Mo.App. 1980), an employer (Riss), named as defendant in the underlying wrongful death case, asked that the circuit judge be prohibited from acting in the case (other than dismissing the same). The basis for the request was that any rights plaintiffs had at common law were supplanted by the Workers Compensation Act. In quashing its preliminary writ, the eastern district declared:
"Section 287.120(1) and (2) [the exclusivity provisions of the Workers' Compensation Act] does not prohibit the filing of the wrongful death action at the same time a workmen's compensation action is pending.
"The harsh result in our recent case of Langendoerfer v. Hazel, 601 S.W.2d 290 (Mo.App. 1980), highlights the advisability of the filing of a separate action under the circumstances existing in this case. In Langendoerfer, claimant filed a claim with the Division of Workmen's Compensation which denied the claim on the ground that the injury was not caused by an accident. She then filed the common law action almost seven years after the accident. The trial court dismissed it on the ground that it was barred by the statute of limitations."
Id. at 633-34. (Emphasis supplied.)
We do not read Killian as rejecting what was said in Kansas City Stockyard, i.e., that an injured employee can have both a common law tort claim and a claim for workers' compensation pending at the same time. Nor do we understand Killian to be inimical to the procedure followed in Somma (as discussed in Lamar), namely, staying the tort action until the workers' compensation claim was decided. Sensibly read, Killian merely reaffirms that a trial court does not have authority to decide if an on-the-job injury resulted from an accident or an intentional act by the employer. 802 S.W.2d at 161 .
"A court has subject matter jurisdiction if the petition states a claim belonging to the general class of cases over which the court's authority extends." Burns v. Elk River Ambulance Serv., Inc., 55 S.W.3d 466, 473 (Mo.App. 2001). "Circuit courts have original jurisdiction over all cases and matters, civil and criminal." Id. at 473; Section 478.070. Based on Kansas City Stockyards, Somma, and Riss International Corp., we find the trial court abused its discretion by dismissing Plaintiffs' suit against Irby and refusing to stay or hold in abeyance that count of Plaintiffs' petition until the Commission resolved the "accident versus intentional act" issue. Consequently, the judgment dismissing Plaintiffs' suit against Irby must be reversed and the cause
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