*1 522 construction Koetting existing legal duty, a similar This found
tanding.7 Court applies cause” here. requirement “good intent informs of specific that a ordinary intelligence his person of (6) in subdivision means “Good cause” in criminal liabili will result or her actions “a cause that would motivate a reason- may requirement ty. Id. scienter “[A] age like under the cir- person able of vagueness especially with mitigate a law’s which the act oc- cumstances under ” notice.... adequacy to the of respect both curred.” This construction Dale, 126, 131 v. State pro- well as potential notice to actors as 1989) (quoting Vill. Es of Hoffman standard, sufficiently concrete so vides a Estates, Inc., Flipside, tates v. Hoffman arbitrary mitigate potential as 1186, 489, 499, 71 102 S.Ct. 455 U.S. enforcement. (1982)). L.Ed.2d 862 This statute subjective culpability on the re predicate V. Coates, e.g., Cf, action of the victim. 565.090.1(5) unconstitutionally Section 614, (holding vague U.S. S.Ct. overbroad; the trial court’s as to “annoy barring statute conduct that was judg- that subdivision is affirmed. The Rather, by”). ing persons passing subdi 565.090.1(6) reversed, ment as to section (6) person utilizes a reasonable stan vision the case is remanded. and and, thus, places public dard on notice culpa conduct of the level at which creates All concur. (6) bility. Subdivision reasonable prohibits. notice the conduct it
The trial court also found the “without
good requirement cause” renders the stat- vague, subjective
ute because it creates a places
standard and
too much discretion
into the
law enforcement
hands of
officials.
LEWIS,
McCartney
M.
M.E.
Staci
previously
“good
This Court
has held
Lewis, minor, by
through
her
provide
cause” to
sufficient notice as to the
friend,
Brown, Appellants,
next
Burle
proscribed.
criminal conduct
See State v.
(Mo.1971).
Davis,
though the statute there pre- involved a distress,” although typically "frighten”
7. "Emotional and "intimidate.” See section torts, 565.225, found common-law also is utilized in Supp.2008. RSMo stalking along Missouri’s statute with both *2 Miller, Connon,
George J. Michael A. Firm, Eureka, Miller/Salsbury Law Pat- III, Reidy, Anthony rick M. F. Porto Mon- aco, Sanders, Gotfredson, Racine & Barber LC, City, Kansas Lewises. Foland, Hofer, W. James Scott D. Fo- Wickens, land, Eifelder, & Hofer Roper PC, City, Kansas for Gilmore Free- man. TEITELMAN,
RICHARD B. Chief Justice.
The issue this case whether work- action. The circuit wrongful death ises’ death bars a sured summary judgment in favor granted court an uninsured claim Freeman, finding that a workers’ circuit court held of Gilmore *3 employer the insured action was barred because against wrongful sation award death the against death claim wrongful made an election of reme- bars the Lewises had judgment is re- employer. they uninsured a workers’ com- dies when obtained 287.280.1, RSMo because against versed award DOT. The Lew- pensation injured party or his or her an allows appeal. ises and DOT proceed in a civil action to against ANALYSIS considering appeal an When FACTS summary judgment, appellate from a an Lewis died when the tractor Lonnie light in the most court reviews record passenger in which he was a over- trailer party against judg favorable to the whom truck, of Nathan The driver turned. ment was entered and affords Gilmore, trail- operating R. was the tractor of all reasonable inferences. benefit employment of his er the course Corp. ITT Fin. v. Mid-Am. Commercial Freeman, Trucking. R F Buddy & d/b/a Supply Corp., Marine operated his tractor trailer Freeman 1993). propriety “The of sum Transporta- to a contract with DOT suant mary judgment purely an issue of law.” carry workers’ tion. Freeman did not if judgment Id. The will be affirmed no DOT did compensation insurance. genuine issues of material fact exist and insurance. moving party is entitled to Lewis, widow, Lonnie Lewis’ Staci M. as a matter of law. Id. at 380. Lewis, a claim McCartney M.E. filed Both the Lewises and DOT assert compensation against for Free- that section 287.280.1 allowed the Lewises They man also filed a and DOT. to in a civil action Free proceed Freeman and Gil- death action man as a result of his failure to insure his stayed wrong- circuit court more. The liability under the Missouri workers’ com a determination was ful death action until pensation though laws even in- department of labor and made obtained workers’ dustrial relations as to whether Lonnie appeal DOT. Resolution of this re out of and in the Lewis’ death occurred quires analysis an of plain language of employment. course of his section 287.280.1. judge An law entered an administrative dependents. award in favor of Lewis’ provides: Section 287.280.1 employee an ALJ found that Lewis was of Every employer subject provi- to the Freeman but Freeman did not shall, chapter sions of this on either an insurance even basis, en- group individual or insure his though required he to do so. legally was thereunder, liability except tire as here- Transpor- The ALJ determined that DOT provided, after with some insurance car- tation was Lewis’ liability rier such authorized insure pay ordered DOT to death and funeral state, except employer that an or benefits. group employers may themselves car- liability entry ry any part of the workers’ the whole or After award, upon satisfying sation intervened in the Lew- DOT ty If ability their so to do.... secure workers’ insur- division of provides, fail ance. Section group employers “Every or section, ... ... injured with this shall insure his entire comply dependents may liability[.]” complied elect The fact that DOT and, therefore, injury bring either to an action with section 287.280.1 after the group only statutory employer, or of em- deemed to be the against such damages personal Freeman from ployers to recover excuse his obli- gation it be a injury or death and shall not contrary, death was surance. To the the plain
defense that lan- *4 guage provides of a fellow of section 287.280.1 that by negligence caused the servant, employee consequence employer’s that the had as- the for an or failure death, injury compensation of the or or to secure workers’ sumed the risk employee dependents or death caused to is that the or his injury that the any degree by negligence may against employ- the file a civil action the exactly er. This the employee; or to recover under what Lewises did. compensation payments To hold that the could chapter with the Lewises not file a or, immediately civil action take payable; away commuted and would one of the so, options Assembly if elects to do he or she that the employee gave the General an may request employee against file a division to seek redress em- ployer nothing made for ex- who payment be medical has done to secure penses injury compensation out of the second fund as workers’ insurance for his provided employees. plain language in subsection 5 of section The of section employee depen- 287.220. or his option. dents this plain language of section 287.280.1 work- requires employers certain that Freeman asserts compensation. ers’ When an interpreted 287.280.1 must be in accor in- dance with the election of remedies doc surance, injured employee or his de- trine. The election of remedies doctrine “may elect” one of three pendents options. “if provides that there are two or more First, may employee dependents his available, the elec inconsistent remedies against elect to file a civil action “such tion to the one is a bar to pursue employer” The term “such re- employer.” upon Fidelity based the other.” & U.S. fers to the that fails to Trust, Co., Fidelity v. Nat’l Bank & Guar. legally required (1937). 412, 47, 48 Mo.App. 232 109 S.W.2d Second, employee surance. or his de- purpose prevent of the doctrine is to pendents may elect to “recover under this single wrong. double redress for a Strom chapter” compensa- and Moore, berg (Mo.App. v. 170 S.W.3d Third, employee tion claim. or his 2005). Freeman further asserts that Mis dependents may payment elect to seek apply souri courts the election remedies from the second fund. claims doctrine to workers’ case, application the Lewises elected the without distinction from its In this and, result, as a option by filing against first an action other areas of law against Freeman is damages Freeman to recover for Lonnie death action receipt the Lewises of a work undisputed Lewis’s death. It is that Free- barred DOT. separate against are ers’ award Transportation man and DOT McClelland, See, responsibili- e.g., Bailey each entities and that had RUSSELL, J., separate dissents in argument This (Mo.App.1993). opinion filed. merit. above, First, plain as established PRICE, JJ., BRECKENRIDGE that language of section 287.280.1 RUSSELL, J. opinion concur to file a civil suit elect” an uninsured such as against RUSSELL, Judge, MARY R. did in Freeman. That is what the Lewises dissenting. this case. I dissent because I believe respectfully Second, Bailey, in cases such as majority’s opinion wrongly per- that filed a work- single mits the Lewises two remedies for a claim a civil action injury by allowing they can obtain a single uninsured situation, plain consistent with the insured and also language of section courts hold sue a civil action *5 that the employer. Contrary immediate to the ma- elect” either a workers’ jority, I would not hold that claim or a civil suit but cannot recover on pursue 287.280.11 allows the Lewises to both claims the same uninsured merely because two remedies the immedi- contrast, In recov- employer. compensa- ate lacked workers’ ered workers’ benefits from in tion insurance and can be sued court also, pursuant DOT and to section Al- provisions under statute. 287.280.1, have to file a elected civil lowing pursuit of two remedies could lead Freeman due to his failure to recovery that impermissible to an double insurance. There the election of remedies doctrine is de- impermissible is no issue of an double signed prevent. recovery recovery by because doctrine, “The election of remedies a subject Lewises in the civil action would be estoppel, originates upon doctrine of subrogation rights. to DOT’S theory that a right where has Finally, adopting argument Freeman’s one of two inconsistent remedies pursue require would to rewrite section Court election, suit, he and makes his institutes permit 287.280.1 to Freeman to avoid the prosecutes judgment, it to final he statutory requirement he work- pursue cannot thereafter another and in- insurance while also remedy.” consistent Whittom v. Alexan- evading responsibility for his em- financial P’ship, der-Richardson 851 S.W.2d ployee’s injury. That is not the law. The (Mo. 1993) (internal quotations banc Lewises’ civil action Freeman is omitted). prevents The doctrine an in- not barred their workers’ jured party collecting from a double recov- award from DOT. “ ery single injury. for a Id. ‘In [its] reversed, and the ease form, election abstract of remedies [the is remanded. merely legal becomes version doctrine] of the idea that one can’t have his cake and ”
FISCHER, DRAPER, JJ., Dobbs, (quoting STITH and eat it too.’ Id. Dan B. (1973)). Remedies, § concur. 1.5 at 14 are All references to section 287.280 RSMo 2000. I majority, purpose do not find that statute’s is not to allow an Unlike addi- interpreted can be with- compensa- section 287.280.1 tional avenue to double of the election of reme- tion for the same simply out consideration because Interpretation of section the dies doctrine. immediate fails to by this framework: guided 287.280.1is there is another employer who can be statutes, construing a court ascer- Instead, for a remedy. considering sued legislature
tains the intent of the from compensation-recovery remedy avail- language used and effect able under section together 287.040 provisions legisla- that intent. The language of section op- not in isolation but tive act are read remedy tional that remains this case is together, reasonably and if construed not Lewises can collect another possible, provisions will be harmon- monetary award via a civil action but rath- Insight ized with each other. into the er is that the insured legislature’s object gained by can be recovery against will seek the uninsured problems sought to be identifying immediate and the circumstances and remedied existing at the time of the conditions majority makes much of the fact
enactment. that there are distinct employers two Nursing v. Miller Home County Bachtel subject issue this case who were to two 2003) Dist., pursued by different remedies the Lew- (internal omitted). citations ises—both immediate em- *6 ployer who was sued in a civil action and construction,
Considering these rules of statutory employer the insured who was together I read section 287.280.1 with sec- pay compensation. ordered to workers’ 287.040,2 tion which defines the workers’ however, presence employers, The of two compensation liability statutory for a em- injuries does not mean there are two ployer employer when the immediate fails issue that would overcome double-com- carry compensation workers’ insurance. pensation sought concerns to be addressed “liability Under by the election of remedies doctrine —the employer primary” the immediate shall be sought inju- redress for the Lewises same assessing compensation when workers’ lia- ry in both the civil action and the workers’ bility to the Section employee. compensation proceedings. that, further in the event that by is paid secondarily those majority suggests pre- also that to [e.g. paid liable when the civil vent the Lewises’ action removes the by statutory employer because the im- incentive that the immediate employer has uninsured], mediate was provide required compensation paid by pri- not insurance. But to the extent that the im- marily liable be recovered from employer’s willingness mediate primarily those liable.” insurance is moti- legislative implications intent of section 287.280.1 vated the financial of fac- litigation, for a ing possible to ensure an avenue there remains monetary claimant to incentive for the immediate em- compen- sation when an insurance. Even ployer fails to Lewises, brought by insurance. But the civil the im- Supp.2011. 2. All references to section 287.040 are to RSMo faces mediate still financial con-
sequences because
can seek redress for the workers’ awarded to the payment
sation
Lewises. reasons,
For these I would affirm the judgment.
trial court’s Missouri, Respondent,
STATE of NORFOLK, Appellant.
Elton J. 92252.
No. SC Missouri,
Supreme Court of
En Banc.
June