Case Summary for October 6, 2004

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Case Summary for October 6, 2004

THE FOLLOWING DOCKET SUMMARIES ARE PREPARED BY THE COURT'S STAFF FOR THE INTEREST AND CONVENIENCE OF THE READER. THE SUMMARIES MAY NOT INCLUDE ALL ISSUES PENDING BEFORE THE COURT AND DO NOT REFLECT ANY OPINION OF THE COURT ON THE MERITS OF A CASE. COPIES OF ALL BRIEFS FILED WITH THE COURT ARE AVAILABLE AT THE SUPREME COURT BUILDING, COURT EN BANC DIVISION. SUMMARIES ARE UNOFFICIAL AND SHOULD NOT BE QUOTED OR CITED.

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DOCKET SUMMARIES
SUPREME COURT OF MISSOURI

Wednesday, October 6, 2004
______________________________________________________________________________

SC85803
Kevin Dale Sexton v. Jenkins & Associates, Inc., Steve Sloniker, et al.
Henry and Jackson counties
Immunity for co-employees under workers' compensation law

In March 1993, Kevin Sexton was injured while working for a construction subcontractor at a power plant in Montrose, Missouri. He alleged that a makeshift handrail/guardrail built by Steve Sloniker, Howard Hurlburt and Kent Lacy around an elevator shaft violated OSHA standards and that they failed to tell him the rail would not support a person's weight. Sloniker, who was a supervisor on the job, told Sexton it was safe to use the rail to climb down the elevator shaft. Sexton used the rail, which broke, and he fell down the shaft. In November 2000, Sexton sued Sloniker, Hurlburt and Lacy in Jackson County. He previously had sued them in Henry County, but that court dismissed his petition without prejudice for lack of subject matter jurisdiction. The contractor employees moved to dismiss Sexton's petition or lack of subject matter jurisdiction in Jackson County, alleging that the petition failed to allege "something extra" beyond the duty to provide a safe working place and, therefore, that they were immune from civil suit under the workers' compensation act. In December 2003, the court dismissed the petition, and Sexton appeals.

Sexton argues the court misapplied the workers' compensation act and incorrectly found that the contractor employees -- his coworkers -- were entitled to immunity under the act. He contends section 287.120, RSMo, provides immunity to employers, not employees, and, therefore, that his coworkers are not immune from civil suit. Sexton argues the court misapplied the immunity created in State ex rel. Badami v. Gaertner, 630 S.W.2d 175 (Mo. App. 1982), because that immunity applies only to corporate supervisors and officers acting in their supervisory capacity. He asserts that Hurlburt and Lacy are not supervisors or officers and, therefore, should not be immune under Badami. He contends that Sloniker was a supervisor but that he was not acting in his supervisory capacity when he built and installed the guardrail and handrail and, therefore, also should not be immune under Badami. He asserts that the court's grant of immunity to co-employees violates the state constitution's open courts provision by creating an arbitrary, vague, ambiguous and unreasonable obstacle for persons injured by coworkers to access the courts. Sexton further argues he sufficiently pled specific affirmative acts or active negligence necessary to constitute "something extra" to remove the case from the labor and industrial relations commission's exclusive jurisdiction and to have a jury consider his case.

Contractor employees Sloniker, Hurlburt and Lacy respond that the court properly found they were entitled to immunity under the workers' compensation act. They argue the act provides immunity for employees where the employee is charged with breaching the non-delegable duty of the employer to provide a safe workplace. They contend Badami and its progeny apply the act's plain language and should be followed here. They assert that immunity under section 287.120 is not limited to corporate supervisors and officers acting in a supervisory capacity but rather that it extends to all employees charged with carrying out the employer's duty to provide a safe workplace. Sloniker, Hurlburt and Lacy respond that Sexton waived his constitutional challenge to the statute by failing to raise it at the earliest opportunity. They argue the immunity afforded to co-employees under the statute is constitutional. They contend it does not create an unreasonable or arbitrary procedural barrier to the courts but merely is a statutory modification of a cause of action that had been recognized at common law. Sloniker, Hurlburt and Lacy further respond that Sexton failed to allege any negligent acts that would fall outside the scope of their employer's duty to provide a safe workplace and, therefore, that they are immune from Sexton's civil suit under workers' compensation law.

SC85818
State ex rel. Eric A. Beaver v. William Burgess, Superintendent, and Denis Agniel, Chairman of the Missouri Division of the Board of Probation and Parole
Buchanan County
Credit for time served on probation

In April 1997, Eric Beaver was charged with two counts of driving while intoxicated as a persistent offender. He pled guilty and, in May 1997, was sentenced to concurrent prison terms of five years on each count. He completed a 120-day institutional treatment program, was released in September 1997 and subsequently was placed on five years' probation. In November 1997, Beaver was arrested again for driving while intoxicated as a persistent offender. In January 1998, he pled guilty and was sentenced to five years in prison, to be served consecutively to the other terms. His probation was revoked the same day. He completed a second 120-day institutional treatment program in May 1998 and was placed on probation for four years. Following another arrest, the court in August 1999 again revoked Beaver's execution. In December 1999, Beaver completed his third 120-day institutional treatment program, and the court placed him on three years' probation. In September 2001, Beaver's probation was revoked again, and he since has been incarcerated in the Western Reception Diagnostic Correction Center in St. Joseph, Missouri. In May 2003, Beaver sought release through a petition for a writ of habeas corpus. The writ court found that the sentencing court improperly placed Beaver on a third term of probation in the concurrent cases. Accordingly, the writ court found that Beaver was entitled to credit against his sentences in the two concurrent cases for the time he was on the third term of probation, from December 22, 1999, until his five-year sentences expired. The writ court denied Beaver's petition, however, finding that he had not shown that his detention at the time he filed his petition was unlawful. Beaver now seeks a writ of mandamus from this Court.

The parties agree that, under section 559.036.3, RSMo, the court improperly sentenced Beaver to a third term of probation. The parties further agree that Beaver's conditional release date should be reset as February 7, 2005. Beaver argues, however, that he is entitled to prison time credit for all the time served since the second probation revocation on December 22, 1999. The state responds that Beaver lacks a clearly established right to this credit because, during the time period for which credit was given, he was not serving his sentence in the department of corrections' custody but rather was in the community, under the circuit court's supervision.

SC85810
Missouri Coalition for the Environment, et al. v. Missouri Land Reclamation Commission, Holcim (US) Inc.
St. Louis and Ste. Genevieve counties
Constitutional challenge to land reclamation act amendments

This case has been removed from the October 6, 2004, oral argument docket.

SC85972
In re: J.R. Victor
Greene County
Attorney discipline

In December 2001, Ralph and Wilta Walters consulted with Springfield, Missouri, attorney J.R. Victor about representing them in a bankruptcy matter. They retained him in May 2002, paying him $700 in advanced fees. By early June 2002, Victor had completed the documents necessary to file the bankruptcy petition, although he failed to tell the Walterses that the paperwork was ready for their signature. In July 2002, Victor was diagnosed with congestive heart failure and was hospitalized. Between September 2002 and March 2003, he conducted only a part-time law practice, but he failed to advise the Walterses of his physical ability to handle their bankruptcy. In April 2003, they faxed Victor a letter asking him to return the $700. He refunded the money in August 2003, after the office of chief disciplinary counsel had contacted him about the issue. The chief disciplinary counsel now seeks to discipline Victor's law license.

The parties stipulate that Victor violated the rules of professional responsibility in his representation of the Walterses, and they stipulate that he should receive a public reprimand and a two-year probation. The parties agree that this Court accepting the discipline recommendation would promote efficient processing of discipline cases and judicial economy, put Victor's misconduct on the public record and allow disciplinary authorities to monitor Victor's practice to forestall future misconduct.