Claims arising out of injuries sustained at work are generally prosecuted in the Missouri Labor and Industrial Relations Commission (the “Commission”). However, it is not uncommon for an injured worker to elect to either file suit in circuit court or file in both venues. Missouri’s Workers’ Compensation Law (the “Act”) provides that if an injury comes within the definition of the term “accident” as defined in R.S.Mo. §287.020.2, then it is included within the exclusivity provisions of the Act, and recovery can be had, if at all, only under the terms set out in the Act. In other words, if an injury arising out of the course and scope of employment falls within the statutory definition of “accident”, any relief must be obtained through the Commission, to the exclusion of circuit court.
The Act’s exclusivity provision is set forth in R.S.Mo. §287.120.1, which provides that:
Every employer subject to the provisions of this chapter shall be liable, irrespective of negligence, to furnish compensation under the provisions of this chapter for personal injury or death of the employee by accident arising out of and in the course of the employee’s employment, and shall be released from all other liability therefore whatsoever, whether to the employee or any other person.
Beginning in the 1980s, Missouri courts interpreted the Act’s exclusivity provision as a jurisdictional issue, meaning that the circuit courts lacked jurisdiction over the subject matter of the claim. Because circuit courts can only adjudicate issues over which they possess jurisdiction over the subject matter of the claim, a motion to dismiss for lack of subject matter jurisdiction may be raised at any time. That was the case in McCracken v. Wal-Mart Stores East, LP, 298 S.W.3d 473 (Mo. banc 2009), where Wal-Mart filed a motion to dismiss McCracken’s negligence claim on the morning trial was set to begin. Wal-Mart alleged McCracken was its statutory employee, therefore, the court lacked subject matter jurisdiction over McCracken claim.
The circuit court agreed, finding the exclusive jurisdiction of his claim was vested in the Commission. In reversing the circuit court, the Missouri Supreme Court overruled 30+ years of case law in holding that, “to the extent that some cases have held that a court has no jurisdiction to determine a matter over which it has subject matter and personal jurisdiction, those cases have confused the concept of a circuit court’s jurisdiction — a matter determined under Missouri’s constitution — with the separate issue of the circuit court’s statutory or common law authority to grant relief in a particular case.”
The Missouri Supreme Court concluded that the exclusivity provisions of the Act must be raised as an affirmative defense to the court’s statutory to proceed with resolving the claim, and the defense will be deemed waived if not asserted. Following publication of McCracken, the Missouri Court of Appeals – Western District issued its opinion in Fortenberry v. Buck, 307 S.W.3d 676 (Mo.App.W.D. 2010), in which the court noted the requirement of raising the exclusivity provision as an affirmative defense, and found that “a defendant, seeking a pre-trial dismissal based on workers’ compensation exclusivity, must file a motion for summary judgment.” The court further noted, however, that, “[w]hen the applicability of section 287.120 appears from the face of the petition, a defendant can also properly file a motion to dismiss for failure to state a claim upon which relief can be granted, see Rule 55.27(a)(6), or for judgment on the pleading pursuant to Rule 55.27(b) if the affirmative defense appears from the petition and other pleadings.”
Several appellate opinions have followed the procedural guidelines for asserting the exclusivity provision announced in Fortenberry. See, e.g., Treaster v. Betts, 324 S.W.3d 487 (W.D.Mo. 2010); Heirien v. Flowers, 343 S.W.3d 699 (Mo.App.S.D. 2011); Cooper v. Chrysler Group, LLC, 2011 Mo.App. LEXIS 1647 (Mo.App.E.D. Dec. 13, 2011).
The court in Cooper identified another alternative to the motion to dismiss/motion for summary judgment option. In Cooper, the injured worker first filed a claim with the Commission, and while that claim was pending, filed suit in circuit court. Chrysler Group raised the exclusivity provision of the Act as an affirmative defense and moved for summary judgment, in accord with Fortenberry, arguing that “plaintiff’s exclusive remedy for damages caused by injuries arising from a slip and fall on his employer’s premises was with the Commission.” The trial court agreed.
On appeal, the appellate court reversed and remanded with directions to stay the circuit court proceedings until the Commission determined whether there had been an “accidental injury” as defined by the Act. The court reasoned that the Commission retained primary jurisdiction to determine “questions includ[ing] determinations of whether there was an accident arising out of and in the course of employment and whether an employee’s injury resulted from an accident or an intentional act.” The court concluded that, “under the primary jurisdiction doctrine, the circuit court does not have the authority to determine the question of whether there was an “accidental injury” within the definitions of the Workers’ Compensation Law.”
The court notes that prior to McCracken, the exclusivity defense was permissibly raised as a motion to dismiss for lack of subject matter jurisdiction, but that dismissal on jurisdictional grounds “did not prevent a plaintiff from refiling his common law action and litigating it on the merits if the Commission subsequently determined that the plaintiff’s injury was not compensable under the Workers’ Compensation Law.” The court reasoned that since the exclusivity defense is based on the existence of accidental injury, which is an issue of fact to be determined by the Commission, it would be inappropriate for a court to enter summary judgment on the defense before the Commission decided the question of accidental injury, “because summary judgment would bar the refiling of the lawsuit if the Commission does not find an accidental injury.” As a result, the court found summary judgment to be premature, and remanded the case back to the circuit court with instructions to stay the proceedings until the Commission determines whether there was an “accident” as defined by the Act. Both parties in Cooper filed a motion for rehearing/transfer to the Missouri Supreme Court, and both motions were denied by the appellate court on January 23, 2012.
McCracken and its progeny make clear that a defense predicated on the exclusivity provision of the Missouri Workers’ Compensation Law is no longer considered a subject matter jurisdictional defect, but rather is an affirmative defense to the circuit court’s statutory authority to proceed. The defense must therefore be timely raised or it will be deemed waived. However, in light of Cooper, it remains uncertain whether circuit courts will be inclined to stay civil actions which are filed contemporaneously with or before a claimant seeks relief in the Commission.