Niсholas ANDERSON by his Next Friend, Crystal ANDERSON, Appellant, v. KEN KAUFFMAN & SONS EXCAVATING, L.L.C., Respondent.
No. WD 66777.
Missouri Court of Appeals, Western District.
Feb. 19, 2008.
Motion for Rehearing and/or Transfer to Supreme Court Denied March 25, 2008.
248 S.W.3d 101
In his remaining point, Miller contends that the definition of stalking in
“To properly raise a constitutional issue, a party must: (1) raise the question at the first available opportunity; (2) specifically designatе the constitutional provision alleged to have been violated, such as by explicit reference to the article and section, or by quotation from the particular provision; (3) state the facts showing the violation; and (4) preserve the constitutional question throughout for appellate review.” Firemen‘s Ret. Sys. v. City of St. Louis, 2006 WL 2403955 *5 (Mo.App. E.D.2006). “Additionally, a constitutional challenge to a statute must not only have been presented to the trial court, but the trial court must have ruled thereon.” Mo. Prosecuting Attorneys & Circuit Attorneys Ret. Sys. v. Pemiscot County, 217 S.W.3d 393, 400 (Mo.App. S.D. 2007). “The purpose for this requirement is to give the trial court an opportunity to fairly identify and rule on the issues and to prevent surprise to the opposing party.” Id.
Miller failed to properly raise his constitutional claim before the trial court. Accordingly, that claim is not preserved for appellate review. Point denied.
The judgment is affirmed.
All concur.
Scott R. Pool, Esq., Jefferson City, MO, for Respondent.
Before, HOWARD, C.J., LOWENSTEIN, ULRICH,1 BRECKENRIDGE,2
PATRICIA BRECKENRIDGE, Judge.
Nicholas Anderson, by and through his mother as next friend, Crystal Anderson, appeals the trial court‘s judgment dismissing his claim for wrongful death for lack of subject matter jurisdiction. Specifically, the trial court found that Nicholas‘s petition alleged facts that fall within the exclusive jurisdiction of the Division of Workers’ Compensation. In his sole point on appeal, Nicholas asserts that thе trial court erroneously declared the law by construing the version of
Factual and Procedural Background
On November 14, 2005, Brian Reeves was employed by Ken Kauffman & Sons Excavating. On that date, he was digging a trench when the trench collapsed and buried him under several feet of dirt. Mr. Reeves died as a result of the accident. He was survived by a son, Nicholas. On November 20, 2005, Nicholas, by and through his mother as next friend, Crystal Anderson, filed a wrongful death claim against Kauffman, alleging that Kauffman‘s failure to provide prоper safety precautions for bracing the trench wall resulted in Mr. Reeves‘s death.
On December 30, 2005, Kauffman filed a motion to dismiss Nicholas‘s petition for lack of subject matter jurisdiction. Kauffman asserted that it was immune from civil liability because the Workers’ Compensation Act,
Standard of Review
“Dismissal for lack of subject-matter jurisdiction is proper whеnever it appears, by suggestion of the parties or otherwise, that the court is without jurisdiction.” Mo. Soybean Ass‘n v. Mo. Clean Water Comm‘n, 102 S.W.3d 10, 22 (Mo. banc 2003). “[W]hether the subject matter of an action falls within the exclusive jurisdiction of the Labor and Industrial Relations Commission is a question of fact, resolution of which is left to the sound discretion of the trial court.” Crow v. Kansas City Power & Light Co., 174 S.W.3d 523, 528 (Mo.App. W.D.2005). Nevertheless, when the facts are uncontested, as here, the question whether the trial court has subject matter jurisdiction is a question of law, which this court reviews de novo. Mo. Soybean Ass‘n, 102 S.W.3d at 22.
No Error in Dismissing Petition for Lack of Subject Matter Jurisdiction
In his sole point on appeal, Nicholas asserts that the trial court erred in dis-
Missouri‘s Workers’ Compensation Act states, in
Before August 28, 2005, the scope of the Act was еstablished by
This chapter shall apply to all cases within its provisions except those exclusively covered by any federal law.
Senate Bill 1, as originally introduced in the 2005 legislative session, did not contain any change to
This chapter shall apply to all cases within its provisions except those exclusively covered by any federal law and those addressed in subsection 11 of section 287.120.
(Emphasized language added.) In addition, an amendment to
The actual version of
This chapter shall apply to all cases within its provisions except those exclusively covered by any federal law and those addressed in section 287.120.
In other words, in the final version of
During a special session in September 2005, the legislature again amended subsection 1 of
This chapter shall apply to all cases within its provisions except those exclusively covered by any federal law.
The amendment did not contain an emergency clause, so the effective date of the
Nicholas‘s appeal requires a determination of the effect of the language in the amendment to
As noted previously, the version of
This chapter [287, Workers’ Compensation Law] shall apply to all cases within its provisions except those exclusively covered by any federal law and those addressed in section 287.120.
Thus, under the plain and ordinary meaning of this statute, those cases covered by federal law or addressed in
“Section 287.120 governs the determination of when an injury falls under the Workers’ Compensation Law....” State ex rel. MW Builders, Inc. v. Midkiff, 222 S.W.3d 267, 270 (Mo. banc 2007). Subsection 1 of
Every employer subject to the provisions of this chapter shall be liable, irrespective оf 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 therefor whatsoever, whether to the employee or any other person....
The rights and remedies herein granted to an employee shall exclude all other rights and remedies of the employee, his wife, her husband, parents, personal representatives, dependents, heirs or next kin, at common law or otherwise,
on account of such accidental injury or dеath, except such rights and remedies as are not provided for by this chapter.
Under the plain and ordinary meaning of sections
Neither the version of
Generally, “[a] provision in a statute must be read in harmony with the entire section.” PDQ Tower Servs., Inc. v. Adams, 213 S.W.3d 697, 698 (Mo.App. W.D.2007). Statutes relating to the same subject matter are in pari materia and should be construed harmoniously. Id. This principle “is all the more compelling when the statutes are passed in the same legislative session.” State v. Knapp, 843 S.W.2d 345, 347 (Mo. banc 1992). Where two statutory provisions covering the same subject matter are unambiguous when read separately but conflict when read together, the reviewing court must attempt to harmonize them and give effect to both. City of Clinton v. Terra Found., Inc., 139 S.W.3d 186, 189 (Mo.App. W.D.2004).
In this case, however, the two statutes are in direct conflict and cannot be harmonized. The language in
When it is impossible to harmonize two conflicting statutory provisions, “[a]s a general rule, a ‘chronologically later statute, which functions in a particular way will prevail over an earlier statute of a more general nature, and the latter statute will be regarded as an exception to or qualification of the earlier general statute.‘” Moats v. Pulaski County Sewer Dist. No. I, 23 S.W.3d 868, 872 (Mo.App. S.D.2000) (citations omitted). “Furthermore, ‘[w]here one statute deals with a pаrticular subject in a general way,
Here,
This conclusion would be in conflict, however, with another general rule of statutory construction that “‘evеry word, clause, sentence, and provision of a statute‘” must be given effect. Civil Serv. Comm‘n v. Bd. of Aldermen, 92 S.W.3d 785, 788 (Mo. banc 2003) (quoting Hyde Park Housing P‘ship v. Dir. of Revenue, 850 S.W.2d 82, 84 (Mo. banc 1993)). It is “‘presumed that the legislature did not insert idle verbiage or superfluous language in a statute.‘” Id. (quoting Hyde Park, 850 S.W.2d at 84). Under this rule of statutory construction, the phrase within
Despite this rule of statutory construction, a reviewing court must use rules of statutory construction that “subserve rather than subvert legislative intent.” Elrod v. Treasurer of Mo., 138 S.W.3d 714, 716 (Mo. banc 2004) (quoting Kincade v. Treasurer of the State of Mo., 92 S.W.3d 310, 311 (Mo.App. E.D.2002)). “All canons of statutory construction are subordinate to the requirеment that the court ascertain and apply a statute in a manner consistent with the legislative intent.” Williams v. Nat‘l Cas. Co., 132 S.W.3d 244, 249 (Mo. banc 2004) (quoting Budding v. SSM Healthcare Sys., 19 S.W.3d 678, 682 (Mo. banc 2000)). “Construction of statutes should avoid unreasonable or absurd results.” Reichert v. Bd. of Educ. of St. Louis, 217 S.W.3d 301, 305 (Mo. banc 2007).
The purpose of Missouri‘s Workers’ Compensation Law is “to place upon industry the losses sustained by employees resulting from injuries arising out of and in the course of employment.” Schoemehl v. Treasurer of State, 217 S.W.3d 900, 901 (Mo. banc 2007). “The employee, who sustains an injury through an accident arising out of and in the course of employment, is provided certain compensation, without the neсessity of having to prove fault on the part of the employer....” Gunnett v. Girardier Bldg. Realty Co., 70 S.W.3d 632, 636 (Mo.App. E.D. 2002). In exchange for an “expeditious and simple means of compensation,” Fisher v. Waste Mgmt. of Mo., 58 S.W.3d 523, 527 (Mo. banc 2001), an injured employee “foregoes his right to sue his employer for negligence and to obtain the common-law measure of damages in cases where fault could be shown.” Gunnett, 70 S.W.3d at 636. As written, with inclusion of the phrase “and those addressed in section 287.120,”
Moreover, in addition to being in direct conflict with
This conclusion is consistent with the fact that during a special session in September 2005, the legislature changed subsection 1 of
This chapter shall apply to all cases within its provisions except those exclusively covered by any federal law.
When a statute‘s language is ambiguous or if its plain meaning would lead to an illogical result, extrinsic matters such as the statute‘s history, surrounding circumstances, and objectives to be accomplished through the statute may be considered. Cook v. Newman, 142 S.W.3d 880, 887 (Mo.App. W.D.2004). “Statutory amendments may be used to clarify or restate legislative intent, and subsequent statutes may be considered in construing previously enacted statutes, in order to ascertain the uniform and consistent purpose of the legislature.” Mo. Hosp. Ass‘n v. Air Conservation Comm‘n, 874 S.W.2d 380, 398 (Mo.App. W.D.1994) (internal citations omitted). Here, the subsequent amendment of
Accordingly, the trial court did not err in so construing
HOWARD, C.J., LOWENSTEIN, SPINDEN, SMART, NEWTON, HARDWICK, JJ., and MARTIN, S.J. concur.
ELLIS and HOLLIGER, JJ., concur in outcome of majority in separate concurring opinions.
JOSEPH M. ELLIS, Judge, concurring.
I concur in the result reached by the majority, but write separately because I differ on the route taken to get there.
As the majority notes, neither
The majority opinion concedes that
In my view, this ends the analysis, and we need not addrеss absurd results and the like as the majority opinion finds necessary. The majority does so because it concludes that application of the specific over the general rule of construction would not give effect to every word, clause, and sentence in a statute as required by another rule of construction. Maj. Op. at 108. The flaw in the majority‘s reasoning is that courts frequently are unable to give meaning to every word, clause, and sentence in a statute where two statutes conflict. For example, in Smith v. Missouri Local Government Employees Retirement System, 235 S.W.3d 578 (Mo.App. W.D.2007), this Court was confronted with a conflict be-
Thus, I would give precedence to the more specific statute,
Finally, while I share many of the concerns and agree with many of the thoughts expressed by Judge Holliger, I do not wholly concur with all aspects of his opinion. Nevertheless, I would be remiss if I did not say that I find his reconstruction of the events leading up to the legislature‘s drafting and editing errors compelling. It certainly affirms the appropriateness of the analysis I would utilize to resolve the case and once again reminds us of the great benefit that would be derived if the Missouri General Assembly maintained a legislative history similar to that of United States Congress.
RONALD R. HOLLIGER, Judge, concurring.
I concur in the result only. I write separately because of what may appear to be small but what I believe important differences in philosophy and rationale. The majority opinion at the conclusion of its discussion says that it “excises the phrase” from the original 287.110 adopted in the 2005 regular session. I agree with that holding. The conclusion is inescapable that the inclusion of that phrase was never intended by the legislature given the legislative history outlinеd by the majority. The majority of courts have recognized their power and duty to disregard, strike or eliminate, or excise words or phrases improvidently placed in legislation. Sutherland Statutory Construction Section 47:37 (2007).
It is a rare, rare power, however and can only be done in the most egregious circumstances and only then to carry out the express legislative intent. Although several Missouri courts have acknowledged the general principle in at least one case, the Missouri Supreme Court has applied it. In Leibson v. Henry, 356 Mo. 953, 204 S.W.2d 310 (banc 1947), the legislature addressed language in a 1919 statutory enactment that had picked up unchanged various but not all language from a 1913 version of the same statute. Id. at 315. The court held that some of the language “was simply not deleted” that related to other language that was removed.
Nevertheless, I feel compelled to express some concerns about the approach taken by the majority opinion. Rules of statutory construction are, unfortunately, “necessary evils.” Our lodestar in reviewing legislation is and must always be in a system of separate powers, the intent of the legislature expressed through its plain and ordinary language. And despite the judiciary‘s critics, that language is sometimes neither plain nor ordinary and the intent may be difficult to discern. Fоr obvious reasons we can never look to pub-
Once we do so it is a short path to the conclusion that we have the constitutional power to evaluate not only the logic or absurdity of legislative enactments but their reasonableness or wisdom as well. I am not willing to take a step anywhere near that path. Nor have other judges over the past two hundred years. Thus, courts have developed rules of statutory construction to aid us in restraining and nоt resorting to our own personal views or merely the personal views of all those who have an opinion about legislative intent, including sometimes even individual legislators themselves. But even though called “rules” of construction they are in their truest sense only aids. There are dozens of them. There is no numerical hierarchy for their application. Depending upon the choice and order of application they can even lead to inconsistent, although still “logical” results. And although they solve most problems of legislative interpretation in a satisfactory and acceptable manner based on legal principlеs in a society of the rule of law and a government of three separate branches they do not, in my opinion, in this case.
My disagreement with the majority opinion is to the extent that it suggests or holds that we can use aids to construction to refuse to enforce unambiguous statutory enactments on the basis that they lead to absurd results. There is no ambiguity in the phrase “and those addressed in section 287.120.” I do not believe that the legislature intended the mischief and result that this court is now faced with resolving. I do believe that they made a mistake, doing something accidentally or carelessly that they did not mean to do. The legislature did not intend to repeаl the workers compensation law or make it purely voluntary. But if I were to begin basing my decisions on what I believe is “illogical or absurd” in the face of clear language then I have violated my constitutional oath to follow the law as written. I do not suggest that the majority opinion has strictly done so, but I believe that it is susceptible of the reading that courts have power to resolve inconsistencies based on their views of the reasonableness of the enacted language.
It is not constitutionally acceptable in my view for a court to say that what the legislature clearly stated leads to an absurd or illogical result such that thе courts have the power to ignore and render meaningless a legislative enactment that is otherwise constitutional. If such a power exists it can be abused and will in every case be subject to someone‘s complaint that it has been. It makes it too easy to criticize our courts regardless of the political and philosophical spectrum. Following the rules is the principle mechanism that any judge or a court has for avoiding the influence of personal views and biases. A court‘s job is to protect the rule of law. If the legislature enacts clear language that leads to “absurd or illogical results” the legislative аnd executive branch must live with their mistake until they can correct it, no matter how painful or difficult to explain that result might be.
Not all rules, however, are so clear and rigid that they properly restrain our role. Such are the rules of statutory construction as the majority applies them in this case. The rules of construction can be manipulated so as to subvert the limits of proper judicial power.
I am not critical of my colleagues. Not even the most partisan advocate really believes that the legislature intended to do what the plaintiff argues the original amendment to section 287.120 does.