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Augur v. Norfolk Southern Railway Co.2/8/2005
folk and FCS does not provide that Norfolk employees cannot unload vehicles from its railcars. Thus, Parker is distinguishable.
This court finds the facts of this case more akin to the facts in Dolan. 38 S.W.3d 427. In Dolan, MSX International contracted with Chrysler Corporation to produce sequenced wheel assemblies. Id. at 429. MSX then subcontracted with Logistics Management Services, Inc. (LMS) to supply employees for the manufacturing of the sequenced wheel assemblies. Id. The plaintiff, employed by LMS, sustained injuries while working as a wheel assembler. Id. Following his injuries, the plaintiff filed a workers' compensation claim against LMS and a common law claim for damages against MSX. Id. The Supreme Court, however, found that MSX was a statutory employer of the plaintiff and, therefore, the trial court lacked subject matter jurisdiction over the plaintiff's common law claim. Id. at 430. In particular, the court found that the work performed by the plaintiff "was routine, scheduled, repetitive, and would have required MSX to hire its own employees but for having contracted with LMS." Id.
Here, Norfolk contracted with auto companies regarding delivery of vehicles by rail. Norfolk, in turn, subcontracted FCS to load and unload the vehicles from its railcars and to move the vehicles to Norfolk's storage area. Mr. Augur, an employee of FCS, was injured in the course of unloading vehicles from Norfolk's railcars. The work performed by Mr. Augur was routine, scheduled, repetitive, and would have required Norfolk to hire its own employees but for having contracted with FCS. Id. Thus, the work performed by Mr. Augur was in the usual course of Norfolk's business. Consequently, Norfolk was a statutory employer and, therefore, if federal law did not preempt Mr. Augur's claim as discussed above, then Norfolk would be subject to the provisions of the Missouri workers' compensation act as a statutory employer. Therefore, in the absence of federal preemption, because Norfolk is a statutory employer under section 287.040.1, it "was immune from the common law action filed by [Mr. Augur] by virtue of the worker's compensation statute." Id. at 430. In other words, either Mr. Augur's claim should have been brought as a FELA claim, or, if Mr. Augur's claim were not preempted by FELA, then jurisdiction over Mr. Augur's claim would rest solely with the Labor and Industrial Relations Commission because Norfolk is a statutory employer under section 287.040.1. In either case, Norfolk has demonstrated, by a preponderance of the evidence, that the trial court lacked subject matter jurisdiction over Mr. Augur's claim.
Having determined that the trial court lacked jurisdiction over Mr. Augur's claim, the judgment is reversed and the case is remanded with instructions to dismiss Mr. Augur's petition.
All concur.
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