                  IN THE MISSOURI COURT OF APPEALS
                          WESTERN DISTRICT
JAMES E. EAKER,                  )
                      Appellant, )
                                 )
v.                               )                    WD77851
                                 )
KANSAS CITY POWER & LIGHT        )                    FILED: August 18, 2015
COMPANY,                         )
                    Respondent. )

                        Appeal from the Circuit Court of Jackson County
                          The Honorable S. Margene Burnett, Judge

    Before Division Four: Alok Ahuja, C.J., Joseph M. Ellis, J. and Janet Sutton, Sp. J.

        James Eaker alleges that he was injured when he stepped through a gap in a walkway

while repairing the boiler at a power plant owned and operated by Kansas City Power and Light

Company (“KCP&L”).1 At the time of his injury, Eaker was employed by a third-party boiler-

maintenance-and-repair contractor, not by KCP&L. Eaker sued KCP&L for his bodily injuries,

claiming that the company had failed to use ordinary care to remedy or warn of the gap in the

walkway. The circuit court granted summary judgment to KCP&L, finding that it was Eaker’s

statutory employer under § 287.040.1,2 and that Eaker’s exclusive remedy for his injuries was

        1
                 We refer to Kansas City Power & Light Company as “KCP&L” in this opinion for the
sake of brevity, and because the entity has historically been referred to by this acronym. Kansas City
Power & Light Company is a distinct corporate entity from its affiliate, KCP&L Greater Missouri
Operations Company. Eaker initially named KCP&L Greater Missouri Operations Company as an
additional defendant, but voluntarily dismissed it shortly after the petition was filed. KCP&L Greater
Missouri Operations Company is not involved in this appeal.
        2
               Statutory citations refer to the 2000 edition of the Revised Statutes of Missouri, updated
through the 2013 Cumulative Supplement.
therefore through the worker’s compensation system. Eaker appeals. We conclude that KCP&L

failed to adequately plead the affirmative defense that it was Eaker’s statutory employer, and

therefore that it was entitled to the protections of workers’ compensation exclusivity. We

accordingly reverse, and remand for further proceedings.

                                       Factual Background

       Viewed in the light most favorable to Eaker, the facts show that he was injured on the

morning of July 19, 2008, while repairing the boiler at KCP&L’s Hawthorn 5 power plant.

Although he was working on KCP&L’s property, at the time of his injury Eaker was employed

by Enerfab, a boiler-maintenance and -repair contractor.

       Prior to the incident in question, KCP&L contracted with Enerfab to service and maintain

the Hawthorn 5 boiler unit. Enerfab employees were on KCP&L property at least four times a

week to perform boiler unit servicing and maintenance.

       Eaker’s injury occurred during the emergency repair of a tube leak in the Hawthorn 5

boiler. KCP&L contacted Enerfab about the issue, and Enerfab in turn contacted Eaker’s union.

The union’s hiring hall dispatched Eaker, a union boilermaker, to the plant. Eaker worked at the

plant overnight from July 17 to July 18, then again overnight the following evening until he was

injured at approximately 7:20 a.m. on the morning of July 19, 2008. Eaker’s injury occurred

while he was pulling a light out of the boiler. Eaker stated that, as he pulled the light out, he

stepped back, and his foot fell through a gap in the walkway on which he was standing.

       Eaker filed a workers’ compensation claim against Enerfab in March 2010. He filed this

civil action against KCP&L on May 18, 2012.

       In its Answer to Eaker’s Petition, KCP&L asserted a series of affirmative defenses.

KCP&L’s thirteenth affirmative defense alleged that,




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               [t]o the extent Plaintiff has received compensation from other persons or
       entities involved in this occurrence, including compensation from his employer in
       a workers’ compensation claim, Plaintiff’s monetary damages recoverable herein
       should be reduced by the amount received from those third parties or by the
       amount stipulated in those settlements, whichever is greater.

KCP&L’s sixteenth affirmative defense alleged:

               Defendant cannot be held liable for Plaintiff’s alleged accident or
       subsequent injuries to the extent Defendant relinquished control of the premises to
       Plaintiff’s employer at the time of the accident. Furthermore, Plaintiff has been
       fully compensated for the alleged injury through his exclusive remedy, worker’s
       compensation.

       Eaker filed a Motion to Make More Definite and Certain, or In the Alternative to Strike,

Portions of Defendant’s Answer. The motion challenged, among other things, the particularity

with which KCP&L had pleaded its sixteenth affirmative defense. Eaker argued that KCP&L’s

affirmative defenses, including its sixteenth defense, were “plead as mere conclusory allegations

unsupported by any facts.”

       In its opposition to Eaker’s motion for a more definite statement, KCP&L characterized

its sixteenth affirmative defense as follows:

       This defense provides the fact that KCP&L relinquished a degree of control to
       Plaintiff’s employer. If KCP&L no longer had control over plaintiff, then
       KCP&L is no longer liable and Plaintiff’s only remedy is through worker’s
       compensation. Again, this affirmative defense is sufficiently pled for Plaintiff to
       prepare for trial.

       The trial court sustained Eaker’s motion for a more definite statement with respect to

KCP&L’s sixteenth affirmative defense. KCP&L filed an amended answer on December 6,

2012, which revised its sixteenth defense in the following respects:

               Defendant cannot be held liable for Plaintiff’s alleged accident or
       subsequent injuries to the extent Defendant contracted with Plaintiff’s
       employer, Enerfab, to relinquish relinquished control of the premises and
       safety of Enerfab’s employees to Enerfab to Plaintiff’s employer at the time of
       the accident. Furthermore, Plaintiff has been fully compensated for the alleged
       injury through his exclusive remedy, worker’s compensation.



                                                3
       The circuit court issued a scheduling order on October 16, 2012. The scheduling order

specified that motions to amend the pleadings be filed no later than April 1, 2013, that

dispositive motions be filed no later than June 24, 2013, and that “[a]ll discovery will be

completed on or before July 31, 2013.” The order also provided that “[t]he above cause is

Specially Set for trial on September 23[,] 2013. This setting is a NO CONTINUANCE setting.”

       The circuit court entered an order on July 30, 2013, which granted the parties’ Joint

Motion to Amend Scheduling Order and to Continue Trial Setting. The July 2013 order removed

the case from the trial docket, and granted KCP&L until September 9, 2013 “to file [a]

dispositive motion based upon the statutory employment defense.”

       KCP&L filed a motion for summary judgment on September 9, 2013, claiming that Eaker

was its “statutory employee” under § 287.040.1, and thus that Eaker’s exclusive remedy against

KCP&L was under the Workers’ Compensation Law. Eaker’s opposition argued, among other

things, that KCP&L had not properly pled a statutory employment defense in its answer, and that

the defense was therefore waived.

       On July 14, 2014, the circuit court granted summary judgment to KCP&L. With respect

to the adequacy of KCP&L’s pleading, the circuit court found that, “[w]hile the affirmative

defense contained in paragraph 16 of the Defendant’s Answer could have been drafted with more

particularity, at the very least, Plaintiff was put on notice that Defendant intended to use the

exclusivity of the Workers’ Compensation [Law] as an affirmative defense.” The court also

reasoned that it was unnecessary for KCP&L to expressly refer to “statutory employment,” since

the basis of KCP&L’s defense “is the exclusivity of the Workers’ Compensation [Law], not that

Plaintiff is a ‘statutory employee.’” Finally, the court observed that, after KCP&L filed its

amended answer, “not only did Plaintiff not object to the affirmative defenses in Defendant’s




                                                  4
Amended Answer, but Plaintiff failed to file a subsequent motion regarding Defendant’s

pleadings.” On the merits, the circuit court found that the undisputed facts established that

KCP&L met the criteria specified in § 287.040.1 to be considered a statutory employer, and that

the exception to statutory employment contained in § 287.040.2 was inapplicable.

       Eaker appeals.

                                             Analysis

       “‘The trial court makes its decision to grant summary judgment based on the pleadings,

record submitted, and the law; therefore this Court need not defer to the trial court’s

determination and reviews the grant of summary judgment de novo.’” Ditto, Inc. v. Davis, 457

S.W.3d 1, 8 (Mo. App. W.D. 2014) (quoting Goerlitz v. City of Maryville, 333 S.W.3d 450, 452

(Mo. banc 2011)).

       On appeal, Eaker’s asserts three Points Relied On. His Points challenge both the circuit

court’s conclusion that KCP&L had adequately pleaded an affirmative defense based on the

statutory employment doctrine, and the court’s ruling that the undisputed facts established

KCP&L’s right to summary judgment based on the defense. We conclude that reversal is

required based solely on Eaker’s first Point: that KCP&L failed to adequately plead the statutory

employment doctrine as an affirmative defense. Given our disposition, it is unnecessary to

address the merits of the statutory employment defense.

       A defendant’s contention that a plaintiff’s exclusive remedy for a personal-injury claim is

through the workers’ compensation system “is not a question that affects the circuit court’s

subject matter jurisdiction”; instead, a claim of workers’ compensation exclusivity “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 E., L.P., 298 S.W.3d 473, 479 (Mo. banc 2009); see also

Treaster v. Betts, 324 S.W.3d 487, 490 (Mo. App. W.D. 2010). “For summary judgment to be


                                                 5
granted to a defendant on the basis of an affirmative defense, the movant must establish ‘that

there is no genuine dispute as to the existence of each of the facts necessary to support movant’s

properly-pleaded [sic] affirmative defense.” Ditto, Inc., 457 S.W.3d at 14-15 (quoting ITT

Commercial Fin. Corp. v. Mid-Am. Marine Supply Corp., 854 S.W.2d 371, 381 (Mo. banc 1993)

(second emphasis added by Ditto, Inc.).

        Supreme Court Rule 55.08 requires that “a party shall set forth all applicable affirmative

defenses and avoidances” in a responsive pleading. Rule 55.08 specifies that the responsive

pleading “shall contain a short and plain statement of the facts showing that the pleader is

entitled to the defense or avoidance.”

        To properly plead an affirmative defense as required by Rule 55.08, the party asserting

the defense must allege each ultimate fact necessary to make the defense applicable.

        Bare legal assertions are insufficient to plead an affirmative defense. Instead, an
        affirmative defense is asserted by the pleading of additional facts not necessary to
        support a plaintiff’s case which serve to avoid the defendants’ legal responsibility
        even though plaintiffs’ allegations are sustained by the evidence. In other words,
        the factual basis for an affirmative defense must be set forth in the same manner
        prescribed for pleading claims. A pleading that makes a conclusory statement and
        does not plead the specific facts required to support the affirmative defense fails
        to adequately raise the alleged affirmative defense, and the alleged affirmative
        defense fails as a matter of law.

Ditto, Inc., 457 S.W.3d at 15 (citations and internal quotation marks omitted); see also Peterson

v. Discovery Prop. & Cas. Ins. Co., 460 S.W.3d 393, 410-11 (Mo. App. W.D. 2015).

        To determine the adequacy of KCP&L’s pleading, it is first necessary to determine the

factual elements of the affirmative defense that a defendant is entitled to the protections of

workers’ compensation exclusivity, because it is the plaintiff’s statutory employer under

§ 287.040.1. We begin with the language of the statute. Section 287.040.1 provides in relevant

part:




                                                  6
              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.

       “The General Assembly adopted section 287.040 to prevent employers from

circumventing the requirements of the Act by hiring independent contractors to perform work the

employer would otherwise perform.” Bass v. National Super Mkts., Inc., 911 S.W.2d 617, 619

(Mo. banc 1995). “As the statute makes clear, statutory employment exists when three elements

coexist: (1) the work is performed pursuant to a contract; (2) the injury occurs on or about the

premises of the alleged statutory employer; and (3) the work is in the usual course of business of

the alleged statutory employer.” Id. at 619-20; see also, e.g., McCracken, 298 S.W.3d at 480;

Brito-Pacheco v. Tina’s Hair Salon, 400 S.W.3d 817, 821-22 (Mo. App. W.D. 2013). KCP&L’s

Brief acknowledges the three essential factual elements necessary to establish that a defendant is

a statutory employer under § 287.040.1: “The statutory employment statute has always required

three things: a contract for work, performance of the work on defendant’s premises, and that the

work is done in the usual course of the defendant’s business.” Respondent’s Br. at 37-38.

       KCP&L’s amended answer failed to allege the “three things” which “[t]he statutory

employment statute has always required.” KCP&L’s sixteenth affirmative defense, as amended

following the grant of Eaker’s motion for more definite statement, alleges in full:

              Defendant cannot be held liable for Plaintiff’s alleged accident or
       subsequent injuries to the extent Defendant contracted with Plaintiff’s employer,
       Enerfab, to relinquish control of the premises and safety of Enerfab’s employees
       to Enerfab at the time of the accident. Furthermore, Plaintiff has been fully
       compensated for the alleged injury through his exclusive remedy, worker’s
       compensation.

       Considering the allegations of Eaker’s petition and KCP&L’s amended answer, the fact

that Eaker was injured on KCP&L’s property was adequately alleged. But the other two


                                                 7
elements necessary to establish statutory employment were not. First, neither Eaker’s petition,

nor KCP&L’s amended answer, allege that Eaker was performing work pursuant to a contract

between KCP&L and Enerfab at the time he was injured. While KCP&L’s answer alleged that it

contracted with Enerfab to relinquish control of its premises, the answer does not allege that the

contract required Enerfab to perform work for KCP&L. A landowner may relinquish control of

its property to another in circumstances having nothing to do with the performance of work for

the landowner (many lease or license agreements for commercial property may be of this

character). Although it may be unlikely, given the nature of the Hawthorn 5 property, that

KCP&L would relinquish control of its property for any reason other than the performance of

work for KCP&L, its answer did not allege that Eaker was performing work under the Enerfab-

KCP&L contract at the time of his injury.

       More significantly, the answer fails in any manner to allege that KCP&L’s contract with

Enerfab involved work “which is an operation of the usual business which [KCP&L] . . . carries

on” at Hawthorn 5, or that Eaker was “doing work which is in the usual course of [KCP&L’s]

business” at the time of his injury. § 287.040.1. This is a hotly disputed issue. Eaker contends

that although the KCP&L-Enerfab contract also covered regular boiler servicing and

maintenance, at the time he was injured Eaker was performing specialized, episodic repair work,

which KCP&L would not have hired its own employees to perform. Eaker also argues that his

repair work was not part of KCP&L’s usual business, but was instead only necessary to equip or

facilitate KCP&L’s business (similar to supplying fuel to a manufacturing plant, or delivering

goods to a retailer for resale). Yet, despite the fact that this is a highly contested issue, KCP&L’s

answer alleges no facts to establish that the work Eaker was performing was in the usual course

of KCP&L’s business.




                                                 8
       The circuit court held that “Plaintiff was put on notice that Defendant intended to use the

exclusivity of the Workers’ Compensation [Law] as an affirmative defense,” and that it was

unnecessary for KCP&L to expressly refer to “statutory employment,” since the basis of its

defense “is the exclusivity of the Workers’ Compensation [Law].” We agree that it was not

necessary for KCP&L’s answer to expressly state the legal conclusion that it qualified as Eaker’s

“statutory employer.” But the bare recitation that KCP&L intended to rely on the exclusive-

remedy provisions of the Workers’ Compensation Law would not be sufficient to assert the

affirmative defense under Rule 55.08. “Bare legal assertions are insufficient to plead an

affirmative defense.” Ditto, Inc., 457 S.W.3d at 15. KCP&L was required to allege the ultimate

facts entitling it to workers’ compensation exclusivity; as explained above, it failed to do so.

       In any event, we do not read KCP&L’s sixteenth affirmative defense as asserting that the

company would rely on workers’ compensation exclusivity to defeat Eaker’s claim. The relevant

paragraph alleges that Eaker “has been fully compensated for the alleged injury through his

exclusive remedy, worker’s compensation.” KCP&L’s answer refers to Eaker’s receipt of “full

compensat[ion]” in the past tense. The record does not reflect that any workers’ compensation

claim had been filed against KCP&L – much less resolved – at the time of the filing of KCP&L’s

amended answer. Instead, the relevant statement appears to refer (like KCP&L’s thirteenth

affirmative defense), to Eaker’s receipt of workers’ compensation benefits in a claim against his

direct employer, Enerfab. Eaker filed a workers’ compensation claim against Enerfab in March

2010 (although the record does not reflect when, if at all, that claim was resolved). The

reference in KCP&L’s answer to Eaker’s “exclusive remedy, worker’s compensation,” would

not have put Eaker on notice that KCP&L intended to argue that it was Eaker’s statutory

employer under § 287.040.1.




                                                  9
       Rather than statutory employment, KCP&L’s sixteenth affirmative defense was plainly

intended to invoke the “independent contractor exception” to a claim of premises liability. As

we recently explained,

       “The premises liability theory of negligence provides that a landowner owes an
       invitee the duty to use reasonable and ordinary care to prevent injury to the invitee
       as the result of a dangerous condition existing on the premises.” “Under the
       independent contractor exception to premises liability, if a landowner relinquishes
       possession and control of its property to an independent contractor during the
       period of work, the duty of care shifts to the independent contractor.”

Key v. Diamond Int’l Trucks, 453 S.W.3d 352, 360 (Mo. App. W.D. 2015) (quoting Cossey v.

Air Sys. Int’l, Inc., 273 S.W.3d 588, 590 (Mo. App. E.D. 2009)). Indeed, KCP&L told the circuit

court that this is what its sixteenth affirmative defense was intended to do: in opposing Eaker’s

motion for more definite statement, KCP&L stated that “[t]his defense provides the fact that

KCP&L relinquished a degree of control to Plaintiff’s employer. If KCP&L no longer had

control over plaintiff, then KCP&L is no longer liable . . . .”3 Given KCP&L’s own statements,

the only reasonable reading of its sixteenth affirmative defense is that it was alleging that

KCP&L had relinquished control of the premises to Enerfab, and therefore that the only

potentially liable party was Enerfab.

       The circuit court’s judgment also notes that Eaker failed to object to the affirmative

defenses stated in KCP&L’s amended answer, or to file a second motion for more definite

statement. We are aware of no authority which would require a litigant to file multiple motions

attacking an opponent’s pleadings in these circumstances. Eaker requested that KCP&L plead its

sixteenth affirmative defense with greater particularity, that motion was granted, and KCP&L

provided what further factual allegations it deemed appropriate. As we have explained,

       3
                Although the quoted sentence continues by stating “and Plaintiff’s only remedy is
through worker’s compensation,” this plainly refers to a worker’s compensation claim against Enerfab,
not a claim against KCP&L.


                                                  10
KCP&L’s sixteenth affirmative defense pleaded that it was entitled to rely on the “independent

contractor exception” to a premises liability claim; nothing in its allegations would have alerted

Eaker that KCP&L intended to argue that it was his statutory employer. Eaker was not required

to file a successive challenge to KCP&L’s pleading, requesting that it assert an additional and

different affirmative defense than the one it had chosen to plead (and to re-plead).

        Put simply, KCP&L’s sixteenth affirmative defense failed to fulfill “the purpose of Rule

55.08[, which] is to provide notice to the plaintiff so the plaintiff can be prepared” to respond to

the affirmative defenses on which a defendant intends to rely. Mobley v. Baker, 72 S.W.3d 251,

258 (Mo. App. W.D. 2002). Because KCP&L failed to adequately plead that it was Eaker’s

statutory employer, the circuit erred by granting summary judgment on the basis of this

unpleaded affirmative defense, and the grant of summary judgment must be reversed.4

                                              Conclusion

        The circuit court’s judgment is reversed, and the case is remanded for further proceedings

consistent with this opinion.


                                                __________________________________
                                                Alok Ahuja, Chief Judge
All concur.




        4
                  We recognize that, on remand, KCP&L could seek leave to amend its answer to allege
that it is Eaker’s statutory employer, and that the circuit court might grant leave to amend, and grant
KCP&L summary judgment on the same basis as before. Given that the deadlines to complete discovery
and seek leave to amend the pleadings have passed, and that KCP&L has already been given one
opportunity to re-plead the relevant affirmative defense, it is not a foregone conclusion that the circuit
court would exercise its discretion to grant KCP&L leave to further amend its answer. In these
circumstances, we do not consider it necessary or appropriate to address the merits of the statutory
employment issue in this opinion.


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