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Nowlin v. Nichols5/31/2005
Opinion Vote: AFFIRMED.
Ulrich and Newton, J.J., concur.
Opinion:
This appeal arises from the circuit court's dismissal of a wrongful death claim for lack of subject matter jurisdiction because the Workers' Compensation Law provided the exclusive remedy. Jade Nowlin, a minor, filed the wrongful death claim alleging that her father's accidental death was caused by the negligence of his co-worker, Lonnie Nichols. Jade appeals the dismissal, contending the circuit court erred in determining her claim was preempted by the limited immunity for co-employees under the Worker Compensation Law. For reasons explained herein, we affirm the judgment of dismissal.
FACTUAL AND PROCEDURAL HISTORY
Six-year old Jade Nowlin, by and through her next friend and mother, Roxanna Carter, filed a wrongful death action alleging negligence in the work-related death of her father, Ronnie Nowlin. The petition was filed against Mr. Nowlin's employer at the time of his death, Lonnie Nichols Trucking & Excavating Company, Inc. ("Nichols Trucking), and his co-employee and the owner of Nichols Trucking, Lonnie Nichols.
Jade's amended petition alleged that, on November 11, 2001, Mr. Nowlin and Mr. Nichols were working at a jobsite when a bulldozer became stuck in the mud and was disabled. Mr. Nichols attempted to extricate the disabled bulldozer by rigging it to a chain that was attached to a second bulldozer. After directing Mr. Nowlin to assist in the extrication, Mr. Nichols operated the second bulldozer uphill from the disabled bulldozer. The petition further alleged that, at some point, Mr. Nichols got out of the second bulldozer and left the motor running. The second bulldozer subsequently rolled downhill and crushed Mr. Nowlin, who was standing between the two bulldozers. The petition alleged that Mr. Nowlin's death was proximately caused by the affirmative negligent acts of Mr. Nichols in directing the extrication and in operating the second bulldozer. The petition also sought to impute liability against Nichols Trucking under the negligence theory of respondeat superior.
Mr. Nichols and Nichols Trucking filed motions to dismiss the amended petition for lack of subject matter jurisdiction. The motions asserted the negligence claims were barred because the Workers' Compensation Law provided the exclusive remedy for Mr. Nowlin's work-related death. The circuit court granted the motions, thereby dismissing the petition against both defendants. Jade appeals from the dismissal of her wrongful death claim against the co-employee, Mr. Nichols.
STANDARD OF REVIEW
The Workers' Compensation Law provides the exclusive rights and remedies for the accidental injury or death of an employee in the course of employment. Section 287.120.1-2. A motion to dismiss for lack of subject matter jurisdiction is the proper method to raise, as a defense to a tort action, the exclusive jurisdiction of the Labor and Industrial Relations Commission under the Workers' Compensation Law. Groh v. Kohler, 148 S.W.3d 11, 13 (Mo.App. 2004). A motion to dismiss should be granted when it "appears" the circuit court lacks jurisdiction of the subject matter. Rule 55.27(g)(3). As the term "appears" suggests, the quantum of proof is not high and can be satisfied with a preponderance of evidence that the court is without jurisdiction. Groh, 148 S.W.3d at 13.
If the record is sufficient to support the circuit court's dismissal for lack of subject matter jurisdiction, we will not reverse unless an abuse of discretion is shown. Kesterson v. Wallut, 116 S.W.3d 590, 595 (Mo.App. 2003). In light of the exclusivity of remedies under the Workers' Compe
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