             IN THE MISSOURI COURT OF APPEALS
                     WESTERN DISTRICT

 TONDA HILL,                                     )
                                                 )
                                   Appellant,    )    WD82657
 v.                                              )    (Consolidated with WD82771)
                                                 )
                                                 )    OPINION FILED:
 STEVEN FREEDMAN,                                )    May 19, 2020
                                                 )
                                 Respondent.     )


                Appeal from the Circuit Court of Jackson County, Missouri
                        The Honorable Jennifer M. Phillips, Judge

                 Before Division Four: Karen King Mitchell, Chief Judge, and
                     Thomas H. Newton and Edward R. Ardini, Jr., Judges

       Tonda Hill appeals from the judgment dismissing, with prejudice, her claim of negligence

arising from a car accident involving her former supervisor, Steven Freedman. Hill raises four

points on appeal. She argues that the motion court erred in dismissing her negligence claim

because (1) Missouri substantive law applies, in that the accident occurred in Missouri and the

effects and injuries first occurred in Missouri; (2) Freedman is not immune from suit, in that the

Kansas Tort Claims Act (KTCA) does not apply to a personal-capacity claim brought under

Missouri law; (3) comity does not prohibit Hill’s negligence claim, in that comity does not bar

suits against government employees for their own personal acts; and (4) Hill’s negligence claim is
not barred by workers’ compensation, in that this case is governed by Missouri substantive law,

there was an affirmative negligent act, and the suit claims remedies not obtainable under the

workers’ compensation system. Finding no error, we affirm.

                                                   Background1

         In January 2014, when the alleged negligent act occurred, Hill and Freedman were citizens

and residents of Kansas and were employed by the University of Kansas School of Law, where

Freedman was Hill’s supervisor.              Hill alleges that, while Freedman was driving her to a

work-related event at a law firm in Kansas City, Missouri, he began yelling at her about an

upcoming speaker panel. After the vehicle entered the law firm’s parking garage, Freedman

allegedly revved the engine while continuing to yell at Hill, put the vehicle in reverse, and slammed

the vehicle into a concrete barricade. The collision injured Hill, who was unable to work for a

period of time as a result. Hill reported her injuries to the University and “exercised her rights to

report, and receive treatment and pay for, a workplace injury.”

         In August 2017, Hill filed a single-count suit against Freedman, alleging discrimination

based on her exercise of her workers’ compensation rights. Freedman moved to dismiss for lack

of personal jurisdiction and failure to state a claim for which relief may be granted. Instead of

filing a response, Hill filed a first amended petition in June 2018, asserting claims for assault,

battery, negligence, and discrimination based on the exercise of Hill’s workers’ compensation

rights. Freedman moved to dismiss for lack of personal and subject matter jurisdiction and for

failure to state a claim. In response, Hill conceded that her first two counts—assault and battery—

were time-barred, but she opposed dismissal of the remaining two counts—negligence and

discrimination based on her exercise of her workers’ compensation rights—and sought leave to


         1
           At this stage in the proceedings, we take as true all facts alleged in Hill’s operative petition. See Jackson
v. Barton, 548 S.W.3d 263, 267 (Mo. banc 2018).


                                                           2
amend her petition to address issues related to her discrimination claim. The motion court granted

Freedman’s motion to dismiss the first two counts and denied his motion to dismiss the remaining

two counts; the court also granted Hill leave to amend her petition.

         In September 2018, Hill filed her second amended petition, the operative petition here,

asserting the same four causes of action—assault, battery, negligence, and discrimination based

on her exercise of her workers’ compensation rights. The second amended petition includes the

key allegations previously mentioned—both Hill and Freedman were employed by the University

of Kansas during the relevant time, the alleged negligence occurred in Kansas City, Missouri,

“[w]hile [Freedman was] performing work,” and “Hill exercised her rights to report, and receive

treatment and pay for, a workplace injury.” Freedman again moved to dismiss all four counts,

focusing his arguments in response to Hill’s negligence claim on failure to state a claim and

statutory immunity under the KTCA.

         On February 8, 2019, the motion court issued an order dismissing Hill’s second amended

petition with prejudice.2 The motion court concluded that Hill applied for and received workers’

compensation under Kansas law,3 Kansas law governs issues related to her injury, and Hill failed

to state a claim for negligence or discrimination based on her exercise of her workers’

compensation rights under Kansas law.4 As to Hill’s negligence claim specifically, the court found

that Hill is statutorily barred from asserting a negligence claim against Freedman under Kansas

law, and he is immune from Hill’s negligence claim under the KTCA.



         2
            With respect to the assault and battery claims, Hill’s second amended petition noted that those claims were
previously dismissed and were being “re-pled for purposes of preservation.” Hill had already conceded that the assault
and battery claims were time-barred under Missouri law, and the motion court again dismissed those claims with
prejudice.
          3
            In her opening brief, Hill does not challenge the motion court’s finding that she received benefits under the
Kansas Workers Compensation Act.
          4
            On appeal, Hill challenges only the dismissal of her negligence claim. For that reason, we do not address
Hill’s discrimination claim further.


                                                           3
         This appeal follows.5

                                               Standard of Review

         All four points on appeal challenge the propriety of the motion court’s dismissal of Hill’s

negligence claim. We review “the grant of a motion to dismiss de novo and will affirm the

dismissal on any meritorious ground stated in the motion.” Mosby v. Precythe, 570 S.W.3d 635,

637 (Mo. App. W.D. 2019) (quoting Gerke v. City of Kan. City, 493 S.W.3d 433, 436 (Mo. App.

W.D. 2016)).

         “A motion to dismiss for failure to state a claim on which relief can be granted is an attack

on the plaintiff’s pleadings.” R.M.A. by Appleberry v. Blue Springs R-IV Sch. Dist., 568 S.W.3d

420, 424 (Mo. banc 2019) (quoting In re T.Q.L., 386 S.W.3d 135, 139 (Mo. banc 2012)). “Such

a motion is only a test of the sufficiency of the plaintiff’s petition.” Id. (quoting In re T.Q.L., 386

S.W.3d at 139). “When considering whether a petition fails to state a claim upon which relief can

be granted, [we] must accept all properly pleaded facts as true, giving the pleadings their broadest

intendment, and construe all allegations favorably to the pleader.” Id. (quoting Bromwell v. Nixon,

361 S.W.3d 393, 398 (Mo. banc 2012)). “The Court does not weigh the factual allegations to

determine whether they are credible or persuasive.” Id. (quoting Bromwell, 361 S.W.3d at 398).

“Instead, [we] review[] the petition to determine if the facts alleged meet the elements of a

recognized cause of action . . . .” Id. (quoting Bromwell, 361 S.W.3d at 398). “In order to

withstand the motion [to dismiss], the petition must invoke ‘substantive principles of law entitling

plaintiff to relief and . . . ultimate facts informing the defendant of that which plaintiff will attempt




          5
            Hill filed a timely notice of appeal in this case (Case No. WD82657), but this court requested that Hill file
a final “judgment” because the order issued by the motion court was not denominated “judgment” as required by
Rule 74.01(a). Hill complied and filed a final judgment dismissing her second amended petition with prejudice. After
filing the final judgment with this court, Hill filed a second notice of appeal which caused the opening of a new case
(Case No. WD82771). We consolidated the cases under the lower case number (WD82657).


                                                           4
to establish at trial.’” State ex rel. Henley v. Bickel, 285 S.W.3d 327, 329-30 (Mo. banc 2009)

(quoting State ex rel. Union Elec. Co. v. Dolan, 256 S.W.3d 77, 82 (Mo. banc 2008)). “If the

petition sets forth any set of facts that, if proven, would entitle the plaintiffs to relief, then the

petition states a claim.” Lynch v. Lynch, 260 S.W.3d 834, 836 (Mo. banc 2008).

                                              Analysis

       Hill raises four points on appeal related to the dismissal of her claim of negligence. She

argues that the motion court erred in dismissing her negligence claim against Freedman because

(1) Missouri substantive law applies, in that the car accident occurred in Missouri and the effects

and injuries first occurred in Missouri; (2) Freedman is not immune from suit, in that the KTCA

does not apply to a personal-capacity claim brought under Missouri law; (3) comity does not

prohibit Hill’s negligence claim, in that comity does not bar suits against government employees

or contractors for their own personal acts and omissions; and (4) Hill’s negligence claim is not

barred by workers’ compensation, in that this case is governed by Missouri substantive law, there

was an affirmative negligent act, and the suit claims remedies not obtainable under the workers’

compensation system. Each of Hill’s points on appeal rests on application of Missouri law to her

negligence claim. Thus, we begin our analysis by determining whether Missouri or Kansas law

governs her claim.

       According to Hill’s second amended petition, Freedman’s allegedly negligent act and

Hill’s resulting injury occurred in Missouri. Hill argues that the general choice-of-law rule is to

apply the law of the state where the conduct and injury occurred (here, Missouri), citing Livingston

v. Baxter Health Care Corp., 313 S.W.3d 717, 722 (Mo. App. W.D. 2010). But the general rule

is subject to exceptions. And Hill’s second amended petition indicates that one such exception

applies here.   Hill acknowledges that, following her injury, she applied for and received




                                                  5
compensation under Kansas’s Workers Compensation Act.6 Hill’s decision to pursue that remedy

means that Kansas law governs issues related to her injury. See McLendon v. Kissick, 250 S.W.2d

489, 493 (Mo. 1952) (“[T]he fact remains that plaintiffs chose to collect compensation under the

Kansas law. They are bound by their choice.”); see also Farnham v. Daar, Inc., 184 F. Supp. 809,

811 (W.D. Mo. 1960) (“Missouri will follow the law of the state where the employee accepted

compensation, even though the employee is injured in Missouri.”).

         According to Hill, the principle that Missouri law follows the law of the state where

workers’ compensation benefits are awarded applies only to subrogation claims and not to claims

asserted by the injured party. But, Hill’s argument fails for two reasons. First, Missouri case law

does not limit this principle to cases involving subrogation claims only. In fact, McLendon

involved claims by the individual employees against the alleged tortfeasors, as well as claims by

the employer and insurer, who filed intervention petitions. McLendon, 250 S.W.2d at 490. In that

case, the employees, who were injured in Kansas and accepted benefits under the Kansas Workers

Compensation Act, brought a third-party action in Missouri because their employment contracts

were made in Missouri. Id. The trial court had dismissed all parties’ petitions, based on the

application of Kansas law, and the plaintiffs and intervenors argued to the Court that their claims



         6
           The second amended petition does not specifically allege that Hill’s workers’ compensation benefits were
awarded pursuant to the Kansas Workers Compensation Act; rather, she states that “Hill exercised her rights to report,
and receive treatment and pay for, a workplace injury.” But, throughout the case below, Hill asserted that Freedman
discriminated against her for exercising her workers’ compensation rights, and Freedman asserted that Hill received
workers’ compensation benefits under the Kansas Workers Compensation Act. Hill never contested this assertion and
in its judgment, the motion court expressly found that Hill “filed a workers’ compensation claim in Kansas” and that
“Hill’s petition asserts that she applied for and received workers’ compensation.” Hill did not appeal the motion
court’s findings about the nature of her claims related to the workplace injury. Now, for the first time, Hill argues in
her reply brief that “[t]here is no allegation in the Second Amended Petition that Ms. Hill specifically invoked the
Kansas Workers’ Compensation Act or received benefits specific to Kansas’s workers’ compensation scheme.”
“Because this argument was not raised until [Hill’s] reply brief, at which point [Freedman] had no opportunity to
respond, it was not properly presented and we do not address it.” Patrick v. Altria Grp. Distribution Co., 570 S.W.3d
138, 146 n.8 (Mo. App. W.D. 2019). See, e.g., State ex rel. Lavender Farms, LLC v. Ashcroft, 558 S.W.3d 88, 94-95
(Mo. App. W.D. 2018) (“Issues not raised by appellants in their opening brief cannot be raised for the first time in the
reply brief, and are not properly preserved.”).


                                                           6
should be governed by Missouri law instead of Kansas law. Id. at 493. The Court disagreed:

“[T]he fact remains that plaintiffs chose to collect compensation under the Kansas law. They are

bound by their choice.” Id. Thus, because the plaintiffs (the individual employees) made the

choice to collect workers’ compensation under Kansas law, their efforts to bring a subsequent

claim against the alleged tortfeasor—in addition to the employer and insurers’ efforts to bring

claims due to subrogation or assignment rights—were governed by Kansas law. Id. The present

case is no different.

         In Farnham, the United States District Court for the Western District of Missouri came to

the same conclusion in a case that did not involve subrogation. Farnham was a Kansas resident

who was employed there but injured while working in Missouri. Farnham, 184 F. Supp. at 810.

After filing for and collecting workers’ compensation in Kansas, Farnham filed suit against the

Missouri tortfeasors he claimed were responsible for his injuries. Id. While Farnham would have

had the right to assert this claim under Missouri law, he could not under Kansas law. Id. at 811.

Thus, the question for the court—the same question at issue here—was whether Missouri or

Kansas law governed. The court surveyed the relevant case law and concluded that Kansas law

governed due to Farnham’s acceptance of Kansas workers’ compensation benefits.7 Id. The same

is true here, and Hill’s characterization of this rule as limited to instances of subrogation or

assignment is incorrect.




         7
            The Farnham court relied, in part, on two decisions of the Supreme Court of Missouri. In the first case,
Scott v. Mo. Pac. R.R. Co., 62 S.W.2d 834 (Mo. 1933), an employee of a Kansas employer was injured while working
in Kansas. Id. at 835. After receiving benefits under the Kansas compensation law, the injured employee filed suit in
Missouri against the alleged third-party tortfeasor. Id. The Court held that the employee’s suit was governed by
Kansas law. Id. at 836. In the second case cited, Giambelluca v. Thompson, 283 S.W.2d 531 (Mo. 1955), an employee
of a Texas employer was injured while on the job, presumably in Texas. Id. at 532. The employee received benefits
under the Texas workers’ compensation law. Id. The employee then filed suit in Missouri, and his employer’s insurer
intervened to assert its subrogation suit. Id. The Court held that Texas law applied to the employee’s suit in Missouri.
Id. at 534.


                                                           7
         Second, even if all of the cases involved subrogation claims only, Hill offers no reason why

subrogation claims should be treated differently. When a party brings an action on a subrogated

or assigned claim, that party does so standing in the shoes of the original plaintiff and may assert

the claims the original plaintiff was entitled to assert. Branstad v. Kinstler, 166 S.W.3d 134, 136

(Mo. App. W.D. 2005). Thus, as the previous discussion demonstrates, no matter who brings the

third-party litigation—the original employee-plaintiff or the employer or the employer’s insurer

through subrogation and assignment—choice of law is governed by the state in which the

employee sought and received workers’ compensation benefits.

         Having concluded that Hill’s negligence claim against Freedman is governed by Kansas

law, we turn to the law of that state to determine whether Hill states a cause of action against

Freedman for negligence.

         In her second amended petition, Hill alleges that both she and Freedman were employees

of the University of Kansas, and thus, the State of Kansas. Hill further alleges that Freedman was

“performing work” when her injury occurred.8

         Kansas law provides, in pertinent part, “Except as provided in the workers compensation

act, no employer, or other employee of such employer, shall be liable for any injury, whether by

accident, . . . for which compensation is recoverable under the workers compensation act.” Kan.

Stat. Ann. § 44-501b(d).

         The [Kansas Workers Compensation] Act provides that a covered worker’s remedy
         under the Act is exclusive. If the worker experiences a “personal injury by accident
         arising out of and in the course of employment,” then the Act applies, and no
         separate civil suit in tort against the employer is permitted. Under the exclusive

          8
            At one point in her opening brief, Hill asserts that she is permitted to plead in the alternative and pursue a
theory that Freedman was operating the vehicle in his personal capacity. While Missouri law allows alternative claims
pleading, “the alternative character of the allegation [must] be reasonably inferable from the context of the pleadings.”
Mays-Maune & Assocs., Inc. v. Werner Bros., 139 S.W.3d 201, 205 (Mo. App. E.D. 2004). Hill’s second amended
petition expressly states that Freedman was performing work when Hill was injured, a fair reading of the petition does
not support an inference that Freedman was operating the vehicle in his personal capacity.


                                                            8
         remedy provision, “it is well established that a worker who recovers benefits for an
         on-the-job injury from an employer under the Act cannot maintain a civil action for
         damages against the employer or against a fellow employee.”

Scott v. Hughes, 275 P.3d 890, 898 (Kan. 2012) (internal citations omitted) (quoting Scott v.

Hughes, 132 P.3d 889, 893 (Kan. 2006)). Thus, because Hill and Freedman were both employed

by the State of Kansas during the relevant time, Hill may not assert a claim against her fellow

employee Freedman because Hill’s injury is compensable under the Kansas Workers

Compensation Act.9

         Moreover, under Kansas law, the KTCA governs the circumstances in which the State and

its employees can be liable for tort damages.10 See generally Kan. Stat. Ann. §§ 75-6103; 75-6104.

Of relevance here, the KTCA provides that,

         A governmental entity or an employee acting within the scope of the employee’s
         employment shall not be liable for damage resulting from . . . any claim by an
         employee of a governmental entity arising from the tortious conduct of another
         employee of the same governmental entity, if such claim is . . . compensable
         pursuant to the Kansas workers compensation act.

Id. at § 75-6104(g). This appeal involves a claim by an employee (Hill) of a governmental entity

(the University of Kansas) arising from the allegedly tortious conduct (the car accident) of another

employee (Freedman) of the same governmental entity (the University of Kansas), and Hill’s claim

is compensable under the Kansas Workers Compensation Act.11 Thus, Hill’s negligence claim




         9
            Hill never challenges the conclusion that, under Kansas law, her claim is barred by § 44-501b(d). Instead,
she focuses on her arguments that Missouri law should govern, but her analysis of Missouri substantive and procedural
law is irrelevant; Missouri law dictates that we apply Kansas law under the circumstances of this case.
          10
             Because the University is an agency of the State of Kansas, the University and its employees are covered
by the KTCA. See Owoyemi v. Univ. of Kan., 91 P.3d 552 (Table), at *2 (Kan. Ct. App. 2004).
          11
             Hill asserts that the KTCA does not apply here because Freedman stepped outside state business and
inflicted an individual wrong on her. But Hill’s second amended petition specifically states that the alleged negligence
occurred “[w]hile [Freedman was] performing work,” and the Kansas cases Hill cites to support her assertion are
clearly distinguishable.


                                                           9
fails to state a cause of action because the KTCA provides immunity for Freedman from exactly

this type of claim.12

         Thus, the assumption underlying each of Hill’s four points on appeal—that Missouri law

applies—is incorrect, and under the Kansas Workers Compensation Act and the KTCA, Hill is

precluded from suing Freedman for negligence under the circumstances of this case. Even

“accept[ing] all properly pleaded facts as true, giving the pleadings their broadest intendment, and

constru[ing] all allegations favorably to [Hill],” R.M.A. by Appleberry, 568 S.W.3d at 424 (quoting

Bromwell, 361 S.W.3d at 398), her second amended petition fails to state a cause of action against

Freedman for negligence. To defeat a motion to dismiss, the second amended petition would have

to invoke “substantive principles of law entitling [Hill] to relief, and . . . ultimate facts informing

the defendant of that which plaintiff will attempt to establish at trial.” State ex rel. Henley, 285

S.W.3d at 329-30 (quoting State ex rel. Union Elec. Co., 256 S.W.3d at 82). The second amended

petition fails to do that.

         Accordingly, Points I, II, III, and IV are denied.13




         12
             The motion court applied the KTCA to Hill’s negligence claim as a matter of comity, finding that Missouri
courts in this circumstance would apply Kansas immunities. In an intervening decision, the U.S. Supreme Court held
that state courts are required to provide sister states the same immunity the sister states would receive in their own
state courts. Franchise Tax Bd. of Cal. v. Hyatt, 139 S. Ct. 1485, 1490, 1499 (2019) (Hyatt III). And Freedman
alleges that at least one court has ruled that the holding in Hyatt III compels a state court to provide a sister state’s
agencies and employees with the same immunity to which they would be entitled in their own state courts. Reale v.
State, 218 A.3d 723, 726-27 & n.6 (Conn. Ct. App. 2019). We need not address these issues in light of our conclusion
that Kansas law applies here.
          13
             While this case was pending on appeal, Freedman filed a motion for leave to file a sur-reply, and we took
the motion with the case. In view of our disposition of the case, Freedman’s motion is denied as moot.


                                                          10
                                           Conclusion

         Because Kansas law applies to Hill’s negligence claim against Freedman and, under

Kansas law, Hill fails to state a cause of action against Freedman, we affirm the dismissal of her

claim.


                                             Karen King Mitchell, Chief Judge

Thomas H. Newton and Edward R. Ardini, Jr., Judges, concur.




                                               11
