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Missouri Worker with Mesothelioma Can Sue Employer

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mesothelioma lawsuitWorkers compensation is not the exclusive remedy for occupational disease, appellate court rules

By Geri L. Dreiling, Esq.

In a substantial departure from prior case law, the Missouri Court of Appeals, Western District has ruled that an employee with mesothelioma can pursue a personal injury lawsuit against his employer for the alleged workplace exposure to asbestos.

In the 7-2 ruling, the majority rejected the argument that workers compensation is the exclusive remedy for an occupational disease claim.

In the majority opinion, Judge Alok Ahuja wrote:

“[W]e conclude that because § 287.120 only denies [the worker] a common-law remedy for ‘personal injury or death of the employee by accident,’ [the employer’s] concession that this case does not involve an ―accident,‖ as that term is statutorily defined, defeats its reliance on § 287.120.”

The decision in State ex rel. KCP&L Greater Missouri Operations Company v. Cook was handed down on Sept. 13.

Kenneth B. McClain II of Independence represented the worker. Kansas City-based lawyer J. Stan Sexton represented the employer.

Mesothelioma and Asbestos Exposure

The plaintiff was employed by KCP&L for 34 years. During that period he was exposed to asbestos. After he retired, the worker was diagnosed with mesothelioma. He filed a lawsuit against KCP&L, 16 manufacturers of products that contain asbestos and various John Doe companies that had a connection to asbestos products the plaintiff was exposed to over the years.

Eventually every defendant except the employer was dismissed or settled with the plaintiff. The employer filed a motion for summary judgment based on its affirmative defense that the employee’s exclusive remedy for his occupational disease was workers compensation.

Cass County Circuit Court Judge Jacqueline A. Cook denied the motion for summary judgment. The employer filed a petition for writ of prohibition with the Missouri Court of Appeals, Western District. The Court granted a preliminary writ.

Majority Opinion

The central issue was whether Section 287.120.1 and 2 barred the employee from proceeding against his employer in court. That statute states:

“The rights and remedies herein granted to an employee shall exclude all other rights and remedies of the employee…at common law or otherwise, on account of such accidental injury or death….”

The employer conceded that asbestos exposure over the course of employment did not fit into the definition of an injury caused by an “accident.” However, the employer argued that numerous court decisions, including the 1957 Missouri Supreme Court case Staples v. A.P. Green Fire Brick Co., settled the question of whether occupational disease claims were subject to the exclusivity provisions.

But the majority noted that in 2005, the legislature materially amended the Workers Compensation Act, changed it from liberal to strict construction, amended the definition of “accident” and explicitly “rejected and abrogated” prior case law construing “accident” and “occupational disease.”

As a result, the prior case law did not control the outcome in the present case. The present version of the statute as well as the Missouri Supreme Court’s 2009 decision in Missouri Alliance for Retired Americans v. Department of Labor & Industrial Relations, meant that the statute must be strictly construed.

The majority ruled that the worker could proceed with his civil lawsuit against the employer for alleged workplace exposure to asbestos which he claimed caused his mesothelioma. The preliminary writ was quashed.

Dissenting Opinions

Two dissenting opinions were written. Judge James Edward Walsh asserted that the majority’s decision was contrary to the legislature’s intent. He also noted that historically the judiciary has interpreted “accident” to include an occupation disease and it was reasonable to assume the legislature was aware of that interpretation and found no reason to change the interpretation that in 2005.

Judge James M. Smart emphasized that the writ should be made absolute and the case referred to the Division of Workers’ Compensation because it has exclusive authority to address the claim.

For more information, please visit the Missouri Judiciary’s website. You can also review the prior case law using Google Scholar.