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State ex rel Larkin v. Oxenhandler1/18/2005
Opinion Vote: WRIT OF PROHIBITION MADE ABSOLUTE.
Smart, P.J., and White Hardwick, J., concur.
Opinion:
Relator Bobby Larkin seeks a writ of prohibition against the trial court's decision to proceed in a wrongful death action against him by Mendy Blades, widow; Fred and Linda Blades, parents; and James and Rachel Blades, children of Douglas Blades, decedent. Mr. Larkin filed a motion to dismiss the action for lack of subject matter jurisdiction, which was denied by respondent. Mr. Blades and Mr. Larkin were co-workers, employed by the same employer when Mr. Blades was killed by a vehicle driven by Mr. Larkin. This court issued a preliminary writ directing Respondent not to proceed with the underlying claim.
Mr. Larkin argues that the circuit court is exercising jurisdiction over a claim to which exclusive jurisdiction lies within the Labor and Industrial Relations Commission pursuant to the Workers' Compensation Act, RSMo section 287.120.1. Because Mr. Blades' death occurred while both parties were acting within the course of their co-employment and the petition fails to sufficiently allege that Mr. Larkin performed any affirmative negligent acts beyond the duty to maintain a safe working environment, the trial court lacks subject matter jurisdiction over the claim. The writ of prohibition is made absolute.
Allegations of Fact and Procedural History
The facts alleged in Plaintiff's First Amended Petition reflect that on October 12, 2000, Relator Bobby Larkin was employed by APAC, and was assisting in a road construction project on U.S. Highway 63 in Boone County. Mr. Larkin was operating a dump truck owned by APAC and was transporting gravel to a construction site approximately ten miles north of Columbia. He had driven off site to acquire gravel and returned to unload his cargo; he traveled to the construction site via northbound U.S. Highway 63.
APAC was engaged in the process of building a shoulder along the eastern side of southbound U.S. Highway 63. At the location where the underlying incident occurred, Highway 63 is a four-lane highway with two southbound lanes separated from two northbound lanes by a grass median. On the date of the incident, the east lane (the passing lane for southbound traffic) and a majority of the west lane had been closed to traffic. The outermost portion of the west lane and the west shoulder remained open to traffic, but the speed limit for southbound motorists passing through the construction zone was 50 miles per hour rather than the normal 70 miles per hour limit. Bright orange traffic barrels delineated the boundaries of the construction zone. Signs were in place indicating to traffic that a portion of the roadway was closed and that speed was reduced.
Proceeding north in the northbound lanes of Highway 63, Mr. Larkin turned left to enter the construction site in the southbound lanes by using a turn-off perpendicular to the highway, located between the northbound and southbound lanes. Another worker told Mr. Larkin that the gravel was needed at a site north of the turn off, and Larkin began to back the dump truck to this different location. While backing the truck, Mr. Larkin entered the western lane of Highway 63, which remained open for traveling motorists, and began moving northbound in the southbound lane of traffic.
Douglas Blades was employed by APAC as a heavy equipment operator, and was operating a piece of heavy equipment when Mr. Larkin returned to the construction site. Mr. Blades noticed that Mr. Larkin had exited the boundaries of the construction site, and had backed the truck he was driving into the open southbound lane. At approximately 1:53 P
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