The court of appeals reversed a summary judgment on behalf of a defendant who tried to argue that claimant was a statutory employee and exclusive remedy was within workers compensation. Barger v. Kansas City Power and Light Company, WD 80778 (April 24, 2018). 2018 MO APP LEXIS 422
GPES/KCP&L contracted with Projectile Tube Cleaning to clean tubes. The work was performed a few times a year as needed. Projectile agreed to provide comp coverage and further agreed its workers were not employees of KCP&L.
Claimant fell, injured his wrist, and pursued comp benefits against Projectile. About two years later the worker sued KCP&L in civil court under a res ipsa theory. The circuit court granted summary judgment and found no material factual issues in dispute. The court of appeals reversed the summary judgment.
The court noted that summary judgment is allowed only if there is no material fact in dispute and the burden is on the party seeking the motion. The court further noted that since McCracken v Wal-mart, 298 S.W.3d 473 (Mo 2009) that the party seeking a summary judgment has the burden as an affirmative defense and that strict construction applied to determine that issue under 287.800. The court notes that cases cited by the parties prior to McCracken now had more limited precedential value.
The court noted disputes of material fact in supporting affidavits based on the assertion that work done periodically "as needed" was not "regular" work to trigger the statutory employment defense. It was disputed if KCP&L had its own tools to perform the services.
The court noted that the agreement that the work was performed under and required by contact did not preclude the need for additional evidentiary hearing.
