Calvin and Mary GOODRUM, Appellants, v. ASPLUNDH TREE EXPERT COMPANY, Respondent.
No. 73836.
Supreme Court of Missouri, En Banc.
Jan. 28, 1992.
Disbarment is the ultimate sanction and should be reserved for a clear case. In re Fenlon, 775 S.W.2d at 142. The case is clear and no sanction less than disbarment is warranted.
Respondent ordered disbarred.
All concur.
James W. Benjamin, Barbara F. Corbin, Kansas City, for respondent.
Jack W.R. Headley, Thomas A. Ryan, Jeffrey P. Ray, Kansas City, amicus.
RENDLEN, Judge.
Benjamin Goodrum, employed by respondent Asplundh Tree Expert Company as a groundsman, was trimming trees near overhead power lines on July 10, 1986. Before or during this work, Goodrum‘s foreman, Patrick Lamberton, gave him a substance known as “white cross,” and after ingesting that substance Goodrum suffered sunstroke, cardio-respiratory arrest and acute renal failure, resulting in death twenty days later.
Plaintiffs, Goodrum‘s parents, brought this suit against Asplundh and Lamberton on July 10, 1989, alleging both negligence and intentional tort; in response, Asplundh moved to dismiss for lack of subject matter jurisdiction, insisting the Labor and Industrial Relations Commission had exclusive subject matter jurisdiction under the Worker‘s Compensation Law,
Though the Goodrums countered with a number of constitutional challenges to
1. Every employer subject to the provisions of this chapter shall be liable, irrespective of negligence, to furnish com-
pensation under the provisions of this chapter for personal injury or death of the employee by accident arising out of and in the course of his employment, and shall be released from all other liability therefor whatsoever, whether to the employee or any other person. The term “accident” as used in this section shall include, but not be limited to, injury or death of the employee caused by the unprovoked violence or assault against the employee by any person. 2. The rights and remedies herein granted to an employee shall exclude all other rights and remedies of the employee, ... parents, ... or next of kin, at common law or otherwise, on account of such accidental injury or death, except such right and remedies as are not provided for by this chapter. (Emphasis added.)
In Killian, the Court held that questions involving whether injuries to an employee resulted from an accident or an intentional act by his employer lie within the exclusive jurisdiction of the Labor and Industrial Relations Commission, and the circuit court was without jurisdiction to determine the issue. 802 S.W.2d at 161. See also Hannah v. Mallinckrodt, 633 S.W.2d 723 (Mo. banc 1982). Here plaintiffs plead an intentional tort by an employer is not an “accident” and is thus beyond the purview of the worker‘s compensation laws. See Killian, id. at 160; Speck v. Union Electric Co., 741 S.W.2d 280, 281-83 (Mo.App.1987); Risse v. APV Anderson Brothers, 714 S.W.2d 922, 924 (Mo.App.1986); McCoy v. Liberty Foundry Co., 635 S.W.2d 60 (Mo.App.1982); Harryman v. L & N Buick-Pontiac, Inc., 431 S.W.2d 193, 196-97 (Mo. banc 1968). But see Hood v. Trans World Airlines, Inc., 648 S.W.2d 167, 168 (Mo.App.1983); Loughridge v. Overnite Transportation Co., 649 F.Supp. 52 (E.D.Mo.1986); Allen v. Dorothy‘s Laundry and Dry Cleaning Co., 523 S.W.2d 874, 878-79 (Mo.App.1975) (applying statutory provision that workers’ compensation applies to unprovoked violence or assault against employee by any person). See also Wood v. Union Electric Co., 786 S.W.2d 613 (Mo.App.1990) (exclusive jurisdiction over plaintiff‘s claim for work-related medical expenses is vested in Division of Workers’ Compensation, even though plaintiff pleaded intentional tort in withholding payment); Hill v. John Chezik Imports, 797 S.W.2d 528, 531 (Mo.App.1990); and Hollrah v. Freidrich, 634 S.W.2d 221, 223 (Mo.App.1982) (suit against co-employee for intentional tort not excluded by Workers’ Compensation Act).
In this case, however, we are not called to determine whether the assault upon Goodrum was an “accident” within the meaning of
I. THE ADMINISTRATIVE PROCESS AND JUDICIAL REVIEW
A brief review of the workers’ compensation process will set the background for the resolution of this case. If the employer and employee cannot agree on the compensation payable under the Act, either party may apply for a hearing before an administrative law judge,
Our procedure under Killian follows the doctrine of “primary jurisdiction,” and as stated there, in some circumstances courts will not decide a controversy involving a question within the jurisdiction of an administrative tribunal until after that tribunal has rendered its decision. 802 S.W.2d at 160.
II. THE CONSTITUTIONAL CLAIMS
The Open Courts Provision
The right of access to the courts is said to trace back to the Magna Charta. DeMay v. Liberty Foundry Co., 327 Mo. 495, 37 S.W.2d 640, 645 (1931). It has been held to be an aspect of the right to petition the government contained in the First Amendment to the United States Constitution. California Motor Transport Company v. Trucking Unlimited, 404 U.S. 508, 510, 92 S.Ct. 609 [611], 30 L.Ed.2d 642 (1972). Most importantly, it is explicitly preserved in the Constitution of Missouri.
State ex rel. Cardinal Glennon Memorial Hospital for Children v. Gaertner, 583 S.W.2d 107, 110 (Mo. banc 1979). However, in construing the constitutional provision, the Court has also stated:
Art. I, § 14 does not create rights, but is meant to protect the enforcement of rights already acknowledged by law. The right of access “means simply the right to pursue in the courts the causes of action the substantive law recognizes.”
Mahoney v. Doerhoff Surgical Services, Inc., 807 S.W.2d 503, 510 (Mo. banc 1991) (quoting Harrell v. Total Health Care, Inc., 781 S.W.2d 58, 62 (Mo. banc 1989)). As stated in Blaske, et al., v. Smith & Entzeroth, Inc., et al., 821 S.W.2d 822, 832-833 (Mo. banc 1991), “this Court draws an important distinction between a statute which creates a condition precedent to the use of the courts to enforce a valid cause of action (which violates the open courts provision) and a statute which simply changes the common law by eliminating a cause of action which has previously existed at common law or under some prior statute.”
Plaintiffs rely heavily on State ex rel. Cardinal Glennon Memorial Hospital v. Gaertner, 583 S.W.2d 107, 110 (Mo. banc 1979), where this Court invalidated
Cardinal Glennon is markedly different from the case at bar, as the arbitration procedure before the PLRB was distinct from the process involved in determining an employer‘s liability under the Killian rule. The proceedings before the PLRB were potentially meaningless, as the Board‘s recommendations could be ignored by the parties and were to be given no consideration in any subsequent legal actions. Under Killian, in contrast, the initial decision of the Labor and Industrial Relations Commission whether or not the injury was an “accident” within the meaning of
In Cardinal Glennon the Court struck down a procedure for compulsory but non-binding arbitration, which might operate to delay the jury trial to which the parties were entitled. [The case furnishes] no authority whatsoever for limiting the legislature‘s authority to design the framework for the substantive law. The right of access means simply the right to pursue in the courts the causes of action the substantive law recognizes.
Harrell v. Total Health Care, Inc., 781 S.W.2d at 61-62 (Mo. banc 1989). See also Kandt v. Evans, 645 P.2d 1300, 1306 (Colo. 1982), holding provisions of state workers’ compensation law which prohibited civil lawsuits against co-employee for commission of intentional tort did not infringe upon the state‘s constitutional “access to courts” provision “as long as an adequate statutory remedy was provided.” In response to plaintiffs’ open courts challenge, we find that
Due Process
Plaintiffs next claim the Killian procedure violates the Due Process clause of both the state and federal constitutions. As stated in Findley v. City of Kansas City, 782 S.W.2d 393, 397-98 (Mo. banc 1990), the analysis required for this issue is the same as is necessary to consider plaintiffs’ open courts claim under
Equal Protection
Plaintiffs are not members of a “suspect class,” nor do they hold a “fundamental right” singled out for special consideration under the Equal Protection clause, thus the allegedly discriminatory classification must be upheld in the context of equal protection if found rationally related to a legitimate state interest. Mahoney, 807 S.W.2d at 512. See also Simpson v. Kilcher, 749 S.W.2d 386, 392 (Mo. banc 1988); Blaske, et al., v. Smith & Entzeroth, Inc., et al., 821 S.W.2d 822-829 (Mo. banc 1991). As stated in Mahoney:
A statutory discrimination will not be set aside if any state of facts reasonably may be conceived to justify it ... Those challenging the legislative judgment must convince the court the legislative facts upon which the classification is apparently based could not reasonably be conceived to be true by the governmental decisionmaker.
Instructive in this regard is Suckow v. NEOWA FS, Inc., 445 N.W.2d 776 (Iowa 1989), where an injured employee attempted to sue his employer for injuries allegedly caused by the employer‘s gross negligence. The trial court dismissed the claim and the employee appealed, claiming the court‘s interpretation of the Iowa Worker‘s Compensation Law violated the equal protection guarantee by denying his “fundamental right of access to the courts.” The Iowa Supreme Court held:
Here the judicial process is not essential to the exercise of any fundamental right belonging to workers’ compensation claimants. The State has passed comprehensive statutory schemes ‘to promote an expansive and automatic remedy to
injured employees.’ ... Like the bankruptcy litigation [in United States v. Kras, [409 U.S. 434], 93 S.Ct. 631, 637-39 [34 L.Ed.2d 626] (1973) (upholding against equal protection challenge a filing fee for bankruptcy courts)], workers’ compensation claimants have a way, other than through judicial processes, to resolve their claims against the employer. We conclude [the Iowa primary jurisdiction rule] does not infringe a fundamental right.
Id. at 778-779. As stated in our analysis of the access to the courts challenge, the Killian rule is tailored to seek an orderly and efficient administration of justice. We do not find it violative of the Equal Protection clause.
Right to Trial by Jury
Plaintiffs next claim the Killian procedure violates their right to trial by jury.
The constitutional guarantee of the right to jury trial has remained the same through the four Missouri constitutions commencing with the Constitution of 1820. Thus, the right to jury trial protected by the present constitution is that which existed at common law before the adoption of the first constitution. Neither it nor succeeding constitutions have created new rights to jury trial but have merely preserved from legislative and judicial encroachment that which the people previously enjoyed.
Miller v. Russell, 593 S.W.2d 598, 605 (Mo.App.1979).
In De May v. Liberty Foundry Co., 327 Mo. 495, 37 S.W.2d 640, 648-49 (1931), the Court held that the Workers’ Compensation Act did not violate the constitutional right to trial by jury, and we affirm that neither does the procedure involved in Killian violate this basic constitutional right. The workers’ compensation statutes were framed to provide a new mode of recovery for all claims arising from accidents in the course of employment, whether or not the employer could have been deemed negligent under the substantive law previously extant. If the Commission determines it has no jurisdiction and the matter proceeds to circuit court, the plaintiff may then avail himself of the right to jury trial, but in cases where the Commission properly determines the cause falls within its exclusive original jurisdiction as to workers’ compensation claims, there is no right to jury trial and DeMay is applicable. See also Mahoney, 807 S.W.2d at 507-508.
Original Jurisdiction of Circuit Courts
For their next attack on
Appellants, however, urge that a subsequent amendment to
The circuit court shall have jurisdiction over all criminal cases not otherwise provided for by law, exclusive original juris-
diction in all civil cases not otherwise provided for, and concurrent and appellate jurisdiction as provided by law. (Emphasis added.)
Separation of Powers
The final point raised is a violation of the separation of powers.
While the autonomy of the legislative, executive, and judicial branches lies at the heart of our system of government, “a careful study of the whole Constitution will ... demonstrate that it was not the purpose [of the framers] to make a total separation of these three powers.” Rhodes v. Bell, 230 Mo. 138, 150, 130 S.W. 465, 468 (1910). Each branch constitutes only a part of a single government and must interact harmoniously with the other two. The independence of the branches must be “consistent with that chain of connection that binds the whole fabric of the Constitution in one indissoluble bond of union and amity.” Id. at 151, 130 S.W.2d at 468. From a pragmatic standpoint it is obvious that some overlap of functions necessarily must occur. (Emphasis added.)
In De May, this Court held that the workers’ compensation scheme did not violate the separation of powers, stating: “It must be conceded that the commission is not vested with judicial power in the sense in which that term is used in article 3 of the Constitution, providing for the distribution of the powers of government.” 37 S.W.2d at 650. See also Harris v. Pine Cleaners, 296 S.W.2d 27, 29-30 (Mo. banc 1956), affirming the Commission‘s authority to exercise quasi-judicial power. As we noted in the previous section of this opinion, the Workers’ Compensation Act in effect at the time of De May and as applicable to claims before 1980 essentially limited the circuit court‘s role to the type of review normally performed by the appellate courts. No more do we find a violation under the Killian scheme where the Commission makes the initial determination whether it has jurisdiction over the matter. Furthermore, under
The judgment is affirmed.
COVINGTON, HOLSTEIN, BENTON and THOMAS, JJ., concur.
ROBERTSON, C.J., concurs and concurs in result in separate opinion filed.
BLACKMAR, J., concurs in opinion of ROBERTSON, C.J.
ROBERTSON, Chief Justice, concurring and concurring in result.
I have no quarrel with the result reached by the principal opinion in this case. However, I respectfully disagree with the Court‘s attempt to distinguish State ex rel. Cardinal Glennon Memorial Hospital for Children v. Gaertner, 583 S.W.2d 107, 110 (Mo. banc 1979), for purposes of
As the principal opinion correctly states, “[a]rt. I, § 14 does not create rights, but is meant to protect the enforcement of rights acknowledged by law. The right of access ‘means simply the right to pursue in the courts the causes of action the substantive law recognizes,‘” quoting Mahoney v. Doerhoff Surgical Services, Inc., 807 S.W.2d 503, 510 (Mo. banc 1991). Cardinal Glennon recognizes far more than the constitutional guarantee of procedural access to the courts; it is founded on the notion that the constitution guarantees substantive access to the courts; it is wrong.
The laws of Missouri do not recognize a substantive, common law right in injured workers to pursue recovery against their employers within the judicial system. “The rights and remedies herein granted to an employee shall exclude all other rights and remedies of the employee ... at common law or otherwise, on account of such accidental injury or death.”
In all other respects, I concur in the Court‘s opinion.