                                   Missouri Court of Appeals
                                              Southern District
                                                  Division Two


STEVE HARMAN,                                        )
                                                     )
           Plaintiff-Appellant,                      )
                                                     )
vs.                                                  )       No. SD33414
                                                     )
MANHEIM REMARKETING, INC.,                           )       Filed May 26, 2015
                                                     )
           Defendant-Respondent.                     )

                   APPEAL FROM THE CIRCUIT COURT OF GREENE COUNTY

                             Honorable Jason Brown, Associate Circuit Judge

REVERSED AND REMANDED

           Steve Harman appeals the trial court’s grant of summary judgment in favor of Manheim

Remarketing, Inc. (“Manheim”), holding that Harman’s civil action against Manheim for his

injuries from a fall on Manheim’s premises was barred by The Workers’ Compensation Law, see

sections 287.010-.811. Harman claims that Manheim was not entitled to summary judgment

because section 287.280.1, 1 gives him the right to bring a civil action against Manheim if

Manheim failed to insure its full workers’ compensation liability, as required by that section, and

there are no uncontroverted facts in the summary judgment record supporting that Manheim was




1
    All references to section 287.280 are to RSMo Cum.Supp. 2005.


                                                         1
so insured. We agree, reverse the trial court’s judgment, and remand the case for further

proceedings consistent with this opinion.

                                   Factual and Procedural Background

           Harman filed a personal injury action in the trial court claiming negligence in connection

with injuries he sustained as a result of his slip and fall on black ice on Manheim’s premises on

February 1, 2010, naming Manheim and one of Manheim’s employees as defendants. 2 Manheim

answered and asserted various affirmative defenses, including

           that pursuant to [section 287.040.1 3], Manheim is deemed to be the employer of
           [Harman] and the Missouri Workers’ Compensation Act applies to each and every
           claim asserted against Manheim in [Harman’s] Second Amended Petition. As
           such, the Missouri Workers’ Compensation Act provides the exclusive remedy for
           [Harman’s] claims against Manheim.

           Thereafter, Manheim filed a motion for summary judgment asserting as its legal basis

that Harman’s “negligence claim against Manheim fails as a matter of law as Manheim is the

statutory employer[ 4] of [Harman] . . . [t]herefore, [Harman’s] exclusive remedy against

Manheim is through the Missouri Workers’ Compensation Act.” In support of its motion,

Manheim alleged seven statements of uncontroverted facts related to it that were all later

admitted by Harman. These uncontroverted facts are:

2
  The co-worker named as defendant did not move for summary judgment, and the judgment contested in this appeal
was in favor of Manheim alone. In accordance with Rule 74.01(b), the trial court expressly determined that its
judgment was final for purposes of appeal and there was no just reason for delay.

All rule references are to Missouri Court Rules (2015).
3
    All references to section 287.040 are to RSMo Cum.Supp. 2009.
4
 Although never used in The Workers’ Compensation Law, numerous cases have used the term “statutory
employment” as a shorthand reference to the legal relationship created by the provisions of section 287.040.1 or .2
and the terms “statutory employer” and “statutory employee” to refer to the respective parties in that relationship.
See e.g., Lewis v. Gilmore, 366 S.W.3d 522, 525 (Mo. banc 2012) (“statutory employer”); McCracken v. Wal-Mart
Stores E., LP, 298 S.W.3d 473, 476, 477 (Mo. banc 2009) (“statutory employment” and “statutory employee”);
Bass v. Nat'l Super Markets, Inc., 911 S.W.2d 617, 619 (Mo. banc 1995) (“statutory employment,” “statutory
employer” and “statutory employee”); In re Brito-Pacheco, 400 S.W.3d 817, 821, 822 (Mo.App. 2013) (“statutory
employee” and “statutory employer”).



                                                          2
              1. At all relevant times, [Harman] was employed by Securitas Security
       Services USA (“Securitas”) as a security guard at Manheim.

               2. Securitas and Manheim entered into a contract for Securitas to provide
       security guards to protect Manheim’s premises 24 hours a day, seven days a
       week.

              3. [Harman] provided the security services to Manheim pursuant to the
       contract between Manheim and Securitas.

               4. [Harman’s] alleged injuries occurred on Manheim’s premises.

               5. At the time of [Harman’s] alleged fall, he had already begun his shift as
       a security guard and had just completed rounds of picking up paperwork from
       Manheim’s various auction lots.

               6. [Harman] submitted a worker’s compensation claim for his alleged
       subject injuries.

               7. Prior to contracting with Securitas to provide security services,
       Manheim hired its own security guards to provide the services that Securitas’
       security guards provided at the time of [Harman’s] alleged fall.

       In his response, Harman conceded that “he was a statutory employee of Manheim at the

time of his fall.” Harman asserted that, nevertheless, because he could “elect to sue Manheim to

recover damages for personal injury if Manheim failed to comply with R.S.Mo. § 287.280 by

failing to secure workers’ compensation insurance that covered Steve Harman[,]” Manheim’s

motion for summary judgment must be denied due to Manheim’s failure to plead and prove that

it complied with the insurance requirements of section 287.280.1.

       In its reply, Manheim admitted it “was not an insured under Securitas’ Workers’

Compensation Insurance Policy[,]” that Harman made a workers’ compensation claim only

against Securitas, and that the Stipulation for Compromise Settlement of that claim lists only

Securitas as the employer. Although Manheim did not dispute that it was required under section

287.280.1 to carry workers’ compensation insurance, it reasoned that “[n]othing in [section

287.280.1] requires a statutory employer to prove that it provided worker’s compensation



                                                3
insurance to be allowed immunity in a civil action pursuant to” section 287.120, in that

“[s]ection 287.280 simply states that all employers must carry worker’s compensation

insurance.”

           The trial court granted Manheim’s motion for summary judgment and entered judgment

in favor of Manheim accordingly. Harman timely appeals that judgment.

           In a single point relied on, Harman asserts that “[t]he trial court erred in granting

Manheim’s Motion for Summary Judgment based upon [Manheim’s] affirmative defense of

exclusive remedy” pursuant to section 287.120, “because every employer subject to Chapter 287

must purchase insurance[,]” as provided in section 287.280.1, “in order to receive the benefit of

the exclusive remedy shield under” section 287.120, 5 and Manheim produced no uncontroverted

fact “that it carried Workers’ Compensation Insurance required by R.S.Mo. § 287.280.”

                                             Standard of Review

           “Summary judgment is designed to permit the trial court to enter judgment, without

delay, where the moving party has demonstrated, on the basis of facts as to which there is no

dispute, a right to judgment as a matter of law. Rule 74.04.” ITT Commercial Fin. Corp. v.

Mid-Am. Marine Supply Corp., 854 S.W.2d 371, 376 (Mo. banc 1993). “The key to summary

judgment is the undisputed right to judgment as a matter of law, not simply the absence of a fact

question.” Id. at 380.

                   When considering appeals from summary judgments, the Court will
           review the record in the light most favorable to the party against whom judgment
           was entered. Facts set forth by affidavit or otherwise in support of a party’s
           motion are taken as true unless contradicted by the non-moving party’s response
           to the summary judgment motion. We accord the non-movant the benefit of all
           reasonable inferences from the record.



5
    All references to section 287.120 are to RSMo Cum.Supp. 2009.


                                                         4
                Our review is essentially de novo. The criteria on appeal for testing the
       propriety of summary judgment are no different from those which should be
       employed by the trial court to determine the propriety of sustaining the motion
       initially. The propriety of summary judgment is purely an issue of law. As the
       trial court’s judgment is founded on the record submitted and the law, an appellate
       court need not defer to the trial court’s order granting summary judgment.

Id. at 376 (internal citations omitted).

       The burden is on the summary judgment movant to establish a right to judgment as a

matter of law “flowing from facts about which there is no genuine dispute.” Id. at 378. “The

non-movant never needs to establish a right to judgment as a matter of law; the non-movant need

only show that there is a genuine dispute as to the facts underlying the movant’s right to

judgment.” Id. at 382-82.

       In reviewing the propriety of the grant of the motion for summary judgment, this court

first determines whether the movant is a claimant or a defending party. Id. at 380. “A claimant

is one who ‘seeks to recover,’ without regard to whether recovery is sought by claim,

counterclaim, cross-claim or declaratory judgment. Rule 74.04(a).” ITT Commercial Fin.

Corp., 854 S.W.2d at 380. “A ‘defending party’ is one against whom recovery is sought. Rule

74.04(b).” ITT Commercial Fin. Corp., 854 S.W.2d at 380. Here, Harman sought recovery for

personal injury against Manheim. Manheim answered and asserted affirmative defenses but did

not file a counterclaim or cross-claim. As to Manheim’s motion for summary judgment,

therefore, Manheim is a defending party and Harman is a claimant.

       When the party moving for summary judgment is a defending party, as is the case here,

the movant’s right to summary judgment can be established by showing one of the following:

       (1) facts that negate any one of the claimant’s elements facts, (2) that the non-
       movant, after an adequate period of discovery, has not been able to produce, and
       will not be able to produce, evidence sufficient to allow the trier of fact to find the
       existence of any one of the claimant’s elements, or (3) that there is no genuine



                                                  5
         dispute as to the existence of each of the facts necessary to support the movant’s
         properly-pleaded affirmative defense.[ 6]

Id. at 381. Manheim’s motion, based upon its workers’ compensation exclusive remedy

affirmative defense barring this civil action, falls within the third category. 7

         “A defendant has the burden to prove all affirmative defenses.” Warren v. Paragon

Techs. Group, Inc., 950 S.W.2d 844, 846 (Mo. banc 1997). A defendant may establish a right to

summary judgment by showing that there is no genuine dispute as to the existence of the facts

required to support its affirmative defense. ITT Commercial Fin. Corp., 854 S.W.3d at 381.

The next consideration, therefore, in this court’s determination regarding the propriety of the

grant of summary judgment here, is “whether the uncontroverted material facts established

[Manheim’s] right to judgment as a matter of law.” Wood v. Copeland, 450 S.W.3d 475, 477

(Mo.App. 2014). We determine they do not.

                                                     Discussion

         “The exclusivity provision of Chapter 287 is found in Section 287.120.” Amesquita v.

Gilster-Mary Lee Corp., 408 S.W.3d 293, 299 (Mo.App. 2013). Section 287.120 provides, in

pertinent part:

         1. Every employer subject to the provisions of this chapter shall be liable,
         irrespective of 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 term “accident” as used in this

6
   “An affirmative defense is a procedural tool available to defendants [that] ‘seeks to defeat or avoid the
plaintiff’s cause of action[] and avers that even if the allegations of the petition are taken as true, the
plaintiff cannot prevail because there are additional facts that permit the defendant to avoid the legal
responsibility alleged.’” Thompson v. Brown & Williamson Tobacco Corp., 297 S.W.3d 76, 122
(Mo.App. 2006) (quoting Mobley v. Baker, 72 S.W.3d 251, 257 (Mo.App. 2002)).
7
 “[A] claim that the [circuit] court has before it an exception to the normal rule that tort cases are determined by the
circuit court is a matter of affirmative defense that must be pleaded and proved as provided in Rules 55.08 and
55.27.” McCracken v. Wal-Mart Stores East, LP, 298 S.W.3d 473, 479 (Mo. banc 2009).


                                                           6
        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, his wife, her husband, parents,
        personal representatives, dependents, heirs or next kin, at common law or
        otherwise, on account of such accidental injury or death, except such
        rights and remedies as are not provided for by this chapter.

(Italics added).

        Manheim claimed in the trial court and asserts here that section 287.040.1 makes it an

“employer,” as that term is used in section 287.120, and therefore it is entitled to assert the

exclusivity provisions in that section. Section 287.040.1 “is designed to prevent employers from

evading the Act’s requirements by hiring independent contractors to perform the work the

employer otherwise would hire ordinary employees to perform.” McCracken v. Wal-Mart

Stores East, LP, 298 S.W.3d 473, 480 (Mo. banc 2009). As relevant here, section 287.040.1

provides:

               Any person who has work done under contract on or about his premises
        which is an operation of the usual business which he there carries on shall be
        deemed an employer and shall be liable under this chapter to such contractor, his
        subcontractors, and their employees, when injured or killed on or about the
        premises of the employer while doing work which is in the usual course of his
        business.

(Emphasis added). The uncontroverted facts show and Harman admits and concedes that

Manheim had work done under contract on its premises that was an operation of the usual

business which Manheim there carried on, thereby meeting all the conditions precedent under

this subsection for Manheim to be “deemed an employer.” Therefore, Manheim is correct that it

is an “employer” as that term is used in section 287.120. Shaw v. Mega Indus., Corp., 406

S.W.3d 466, 468 (Mo.App. 2013); Sexton v. Jenkins & Assocs., Inc., 41 S.W.3d 1 (Mo.App.




                                                  7
2000). By that same analysis, however, Manheim is also an “employer” as that term is used in

section 287.280.1.

       Section 287.280.1 provides:

       Every employer subject to the provisions of this chapter shall, on either an
       individual or group basis, insure his entire liability thereunder, except as hereafter
       provided, with some insurance carrier authorized to insure such liability in this
       state, except that an employer or group of employers may themselves carry the
       whole or any part of the liability without insurance upon satisfying the division of
       their ability to do so. If an employer or group of employers have qualified to self-
       insure their liability under this chapter, the division of workers’ compensation
       may, if it finds after a hearing that the employer or group of employers are
       willfully and intentionally violating the provisions of this chapter with intent to
       defraud their employees of their right to compensation, suspend or revoke the
       right of the employer or group of employers to self-insure their liability. If the
       employer or group of employers fail to comply with this section, an injured
       employee or his dependents may elect after the injury either to bring an action
       against such employer or group of employers to recover damages for personal
       injury or death and it shall not be a defense that the injury or death was caused
       by the negligence of a fellow servant, or that the employee had assumed the risk
       of the injury or death, or that the injury or death was caused to any degree by the
       negligence of the employee; or to recover under this chapter with the
       compensation payments commuted and immediately payable; or, if the employee
       elects to do so, he or she may file a request with the division for payment to be
       made for medical expenses out of the second injury fund as provided in
       subsection 5 of section 287.220. If the employer or group of employers are
       carrying their own insurance, on the application of any person entitled to
       compensation and on proof of default in the payment of any installment, the
       division shall require the employer or group of employers to furnish security for
       the payment of the compensation, and if not given, all other compensation shall
       be commuted and become immediately payable; provided, that employers
       engaged in the mining business shall be required to insure only their liability
       hereunder to the extent of the equivalent of the maximum liability under this
       chapter for ten deaths in any one accident, but the employer or group of
       employers may carry their own risk for any excess liability. When a group of
       employers enter into an agreement to pool their liabilities under this chapter,
       individual members will not be required to qualify as individual self-insurers.




                                                 8
(Emphasis added). This section requires the employer to either carry insurance or qualify as a

self-insurer. 8 Mays v. Williams, 494 S.W.2d 289, 291 (Mo. banc 1973). It “was intended to

force employers to insure or bear the sanction or penalty of a partially defense free suit[,]” at the

employee’s election. Id. at 293.

        Therefore, as a general proposition, employers are afforded the protection of the

exclusivity provisions of section 287.120. Shaw, 406 S.W.3d at 468. Those provisions

generally limit an injured employee’s remedies to those provided under Chapter 287 and exclude

that employee from pursuing a civil action. Section 287.120.2. If an employer, however, fails to

insure its full liability under the Workers’ Compensation Law as required by section 287.280.1,

the express and plain language of that section confers upon the injured employee or his

dependents the option to file a civil action against that employer. Lewis v. Gilmore, 366 S.W.3d

522, 525 (Mo. banc 2012). Moreover, in addition to granting the employee that optional remedy,

which essentially rescinds the general exclusivity provided under section 287.120, if the

employee exercises that option, the employer is stripped of several common-law defenses that

might otherwise be available but for that employer being subject to the provisions of Chapter

287. Section 287.040.1.

        Manheim, nevertheless, urges us to distinguish and depart from the clear holding in

Lewis by reading into the plain language of section 287.280.1 an exemption to the insurance

requirement when the employer has no liability to the employee under the last sentence of

section 287.040.3. That sub-section of section 287.040 provides

        In all cases mentioned in the preceding subsections, the immediate contractor or
        subcontractor shall be liable as an employer of the employees of his
        subcontractors. All persons so liable may be made parties to the proceedings on

8
  Any further references in this opinion to “insurance” in the context of the requirements of section 287.280.1
include both compliance methods mentioned in that statute—by insurance policy and by qualifying to self-insure.
The distinction between the two methods is not relevant to any issue addressed in this appeal.

                                                        9
        the application of any party. The liability of the immediate employer shall be
        primary, and that of the others secondary in their order, and any compensation
        paid by those secondarily liable may be recovered from those primarily liable,
        with attorney's fees and expenses of the suit. Such recovery may be had on
        motion in the original proceedings. No such employer shall be liable as in this
        section provided, if the employee was insured by his immediate or any
        intermediate employer.

(Emphasis added). Manheim argues:

        The undisputed facts in this matter show that Securitas paid worker’s
        compensation benefits to Harman. If Securitas had not been able to provide
        benefits Manheim may have been responsible for providing said worker’s
        compensation benefits. The fact Manheim was not called upon in this instance to
        provide Harman worker’s compensation benefits does not mean that it will not be
        liable in the next instance for worker’s compensation benefits. As such, any
        worker’s compensation insurance Manheim could have provided that could have
        covered Harman is irrelevant.

We disagree. Manheim’s compliance with the section 287.280.1 insurance requirement is not

only highly relevant, it is dispositive.

        “The primary rule of statutory construction is to ascertain the intent of the legislature

from the language used, to give effect to that intent if possible, and to consider the words used in

their plain and ordinary meaning.” Wolff Shoe Co. v. Dir. of Revenue, 762 S.W.2d 29, 31 (Mo.

banc 1988). “‘The legislature is presumed to have intended what the statute says, and if the

language used is clear, there is no room for construction beyond the plain meaning of the law.’”

State ex rel. KCP & L Greater Mo. Operations Co. v. Cook, 353 S.W.3d 14, 17 (Mo.App. 2011)

(quoting State v. Sharp, 341 S.W.3d 834, 839 (Mo.App. 2011)).

        Workers’ compensation laws are to be strictly construed. Section 287.800, RSMo

Cum.Supp. 2009. In strictly construing a statement, we presume nothing that is not expressed.

Templemire v. W & M Welding, Inc., 433 S.W.3d 371,381 (Mo. banc 2014).

        Manheim concedes that under section 287.040.3 it had secondary liability for Harman’s

injuries. Manheim also acknowledges that section 287.280.1 requires it to insure that liability


                                                 10
because it falls within its “full liability” under Chapter 287. Nothing in the expressed plain

language of section 287.280.1 relieves Manheim from that insurance requirement in the event

that another employer with primary liability pays the workers’ compensation claim.

         A similar argument was made by the employee in Shaw related to the applicability of the

exclusivity provisions of section 287.120. 406 S.W.3d at 469. There, “[r]elying on the final

sentence of § 287.040.3, and the opening clause of § 287.120.1, Shaw argue[d] that ‘a contractor

is only entitled to immunity [from common-law actions] if it is liable under the Act for

benefits.’” Id. (emphasis added). The western district of our court rejected that argument noting

that the use of the term “employer” without further qualification in the plain wording of the

opening clause of section 287.120 means that “[a]ctual payment of workers’ compensation

benefits is not a prerequisite for this immunity from common-law actions.” Id. at 473. 9

         The opening clause of section 287.120.1 requiring exclusivity by the employee—“[e]very

employer subject to the provisions of this chapter”—as considered in Shaw, is identical to the

opening clause of section 287.280.1 requiring insurance by the employer. For the same plain

language reason that the Shaw court would not read an “actual payment of workers’



9
 As cited and noted by Manheim in its brief, the same result was reached under a liberal construction of the
Workers’ Compensation Law in Sexton v. Jenkins & Associates, Inc., 41 S.W.3d 1 (Mo. App. 2000).

         Sexton is correct that under § 287.040.4 [now 287.040.3] Jenkins is not liable to him since Intec
         was Sexton's immediate employer and it provided a workers' compensation insurance policy that
         covers Sexton. However, just because Jenkins is not liable to Sexton under § 287.040.4 does not
         mean that the Workers’ Compensation Law does not apply to Jenkins. Section 287.040.4 merely
         serves to prioritize the obligations of contractors and subcontractors. If Intec did not have
         coverage, § 287.040.4 would permit Sexton to recover against Jenkins, his statutory employer.
         See Vatterott, 968 S.W.2d at 122. Whether Intec is insured or not and whether Jenkins is liable or
         not, Jenkins is still Sexton’s statutory employer under § 287.040 .3 [now 287.040.3]. Just because
         Jenkins is not liable to Sexton for coverage in this instance does not remove Jenkins’ civil
         immunity.

Sexton, 41 S.W.3d at 6-7. While neither Shaw nor Sexton address or consider the section 287.280.1 employer
insurance requirement, the analysis in both cases supporting that actual liability is not required to apply the section
287.120 exclusivity requirement to employees also supports that actual liability is not required to apply the section
287.280.1 insurance requirement to employers.

                                                           11
compensation benefits” requirement into the plain wording of section 287.120.1 based upon this

phrase and its interplay with the last sentence in section 287.040.3 for the benefit of the

employee as to exclusivity, we cannot read such a requirement into the identical plain wording of

section 287.280.1 for the benefit of the employer as to insurance. Under the express and plain

wording of section 287.280.1, Manheim was required to insure its full liability under the

Workers’ Compensation Law or suffer the provided penalty, which included Harman’s election

to file a civil action against it. Lewis, 366 S.W.3d at 525. The strict construction of the express

and plain language of this section precludes us from presuming or reading into it anything

otherwise. Templemire, 433 S.W.3d at 381.

        Manheim had within its possession and control all the knowledge, information, and

documentation necessary to easily demonstrate its compliance with the insurance requirement of

section 287.280.1, yet it did not to do so in its motion for summary judgment. 10 Without any

proof of such compliance in its summary judgment record, Manheim failed to plead and prove an

uncontroverted fact necessary to support its affirmative defense that the Workers’ Compensation

Law barred Harman from bringing this civil action. See ITT Commercial Fin. Corp., 854

S.W.2d at 381. Manheim, therefore, was not entitled on that legal basis to judgment as a matter

of law. Id. Harman’s point is granted.

                                                  Decision

        The trial court’s grant of summary judgment in favor Manheim is reversed, and the cause

is remanded to the trial court for further proceedings consistent with this opinion.



GARY W. LYNCH, J. – Opinion author


10
 We also note the converse—such information and documentation was not readily or easily known or available to
Harman.

                                                     12
NANCY STEFFEN RAHMEYER, J. – concurs

DON E. BURRELL, J. – concurs




                                   13
