David Harris, Appellant, v. Westin Management Company East and Jeremy Neu, Respondents.

This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court. Opinion

Case Style: David Harris, Appellant, v. Westin Management Company East and Jeremy Neu, Respondents. Case Number: SC88352 Handdown Date: 08/07/2007 Appeal From: Circuit Court of the City of St. Louis, Hon. Thomas C. Grady Counsel for Appellant: David N. Damick Counsel for Respondent: J.A. Felton, R. Kent Sellers and Mara H. Cohara Opinion Summary: This summary is not part of the opinion of the Court. It has been prepared by the Communications Counsel for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court and should not be quoted or cited. The opinion of the Court, which may be quoted, follows the summary. David Harris, a Westin Hotel employee, was injured when the vehicle in which he was riding to work was struck by Jeremy Neu, another Westin employee, on a public thoroughfare near the hotel where he and Neu worked. Harris sued Neu and Westin Management Company East, which owns and operates the hotel where he works, in circuit court. Westin sought to have the case dismissed on the grounds that jurisdiction over the case belonged solely in the division of workers' compensation, not the circuit court. The court dismissed Harris' petition for lack of subject matter jurisdiction. He appeals. REVERSED AND REMANDED. Court en banc holds: The trial court erred in dismissing Harris' petition because it does not appear, by a preponderance of the evidence, that the case is governed by workers' compensation law. It is undisputed that Neu already was in the course and scope of his employment at the time of the accident. The record is uncontested,

however, that Harris had not yet arrived at work at the time of the accident. Missouri law is clear that accidents occurring while going to or from work do not provide a basis for recovery under workers' compensation law. When one is not yet at work, workers' compensation law does not apply, whether one is miles from the workplace or merely driving by his place of employment on a public street. Under these facts, the trial court can determine – without the special expertise of the Labor and Industrial Relations Commission – whether Harris was an "employee" at the time of the accident. Absent a preponderance of the evidence showing that jurisdiction is lacking, the trial court cannot abrogate its duty to make the determination of its own jurisdiction. Citation: Opinion Author: PER CURIAM(FN1) Opinion Vote: REVERSED AND REMANDED. Stith, C.J., Teitelman, Limbaugh, Russell and Wolff, JJ., and Kinder, Sp.J., concur. Price, J., not participating. Opinion: This slip opinion is subject to modification until the Court has ruled on the parties' motions for rehearing, if any, and will become final only after the Court issues its mandate. To see when the Court issues its mandate, please check the docket entries for the case on Case.net. Introduction David Harris was a Westin Hotel employee being driven to work. The vehicle in which he was a passenger was struck by a Jeremy Neu, another Westin Hotel employee. The accident occurred on Spruce Street, a public thoroughfare near the hotel at which they worked. Harris sued Neu and Westin Management Company East, which owns and operates the Westin Hotel. Westin sought to have the case dismissed on the basis that the trial court was without subject matter jurisdiction and that jurisdiction lay solely in the division of workers' compensation. The trial court agreed with Westin and dismissed Harris' petition for lack of subject matter jurisdiction. Because it does not appear by a preponderance of evidence that the case is governed by the workers' compensation law, the judgment is reversed, and the case is remanded. Factual and Procedural Background

A friend was driving Harris to work on Spruce Street. Neu drove a van from the Westin Hotel driveway onto the street and struck the vehicle on Harris' side. At the time of the accident, Harris and Neu were employed at the Westin Hotel. Neu was employed as a valet driver, and the parties do not dispute that he was already in the course and scope of his employment while Harris was traveling to work. The parties do dispute, however, whether Harris was in the course and scope of his employment at the time of the accident. Harris filed a suit against Westin and Neu for the injuries he sustained from the accident. Harris also submitted a claim, pro se, for workers' compensation arising out of the accident. He later dismissed this workers' compensation claim. The trial court dismissed Harris' tort suit without prejudice for lack of primary subject matter jurisdiction, finding that the question of whether his injury occurred in the scope and course of his employment rests exclusively with the Labor and Industrial Relations Commission. Harris appeals. Point on Appeal Harris correctly contends that the trial court erred in dismissing his claims for lack of subject matter jurisdiction because the court cannot abrogate its duty to make the determination of its own jurisdiction absent a preponderance of the evidence showing that jurisdiction is lacking. Standard of Review As noted in James v. Poppa, 85 S.W.3d 8, 9 (Mo. banc 2002), a motion to dismiss for lack of subject matter jurisdiction is an appropriate means of raising the workers' compensation law, chapter 287,(FN2) as a defense to a common law tort action. A court shall dismiss the action whenever it appears that the court lacks subject matter jurisdiction. As the term "appears" suggests, the quantum of proof is not high; it must appear by the preponderance of the evidence that the court is without jurisdiction. Id. Discussion The determination of the existence of an employer/employee relationship is not a question requiring agency expertise. Killian v. J. & J. Installers, Inc., 802 S.W.2d 158, 160 (Mo. banc 1991). As Killian noted, the trial court has the authority to determine whether a plaintiff was an employee at the time of the accident because the issue does not involve matters within the expertise of the commission. Id. By contrast, the commission has expertise in determining

whether the accident arose out of and in the course of the plaintiff's employment and, thus, that factual issue is left to it in the first instance. Id. All of these rules, however, must be considered in light of the fact that jurisdiction remains in the trial court unless it appears by a preponderance of the evidence that the matter falls within the exclusive jurisdiction of workers' compensation law. James, 85 S.W.3d at 9. That standard is not met merely by allegations of one party, as are made here by defendant, that the commission has jurisdiction. Rather, the court must examine the facts presented and find by a preponderance of the evidence that the issue contested is one within the commission's expertise. In this case, while Westin makes the bare assertion that Harris' injury arose within the scope and course of his employment, the record is uncontested that Harris had not yet arrived at work at the time of the accident. Neu collided with the vehicle in which Harris was riding while Harris was on his way to work, traveling on a public street, not on hotel property or its extended premises. Missouri law is clear that accidents occurring going to or from work do not provide a basis for recovery under workers' compensation law. Wells v.

Brown, 33 S.W.3d 190, 192 (Mo. banc 2000); McClain v. Welsh Co., 748 S.W.2d 720, 724-25 (Mo. App. 1988). Going to or returning from employment is one of those essential conditions of employment that every worker must present oneself to perform duties at the assigned location for which he was hired and depart therefrom when the work day is ended. Going to or returning from employment is a personal act, akin to dressing, grooming and presenting oneself for work. In other words, a trip to or from one's place of work is merely an inevitable circumstance with which every employee is confronted and which ordinarily bears no immediate relation to the actual services to be performed. McClain, 748 S.W.2d at 724-25. (internal citations omitted). Harris was not at work when the accident at issue occurred. No evidence created a factual dispute on this issue. As such, the fact that an employer/employee relationship exists between Harris and the employer of the tortfeasor is incidental to Harris' civil cause of action. When one is not at work, workers' compensation law does not apply, whether one is located miles from the workplace or is merely driving by his or her place of employment on a public street. As a result, there is no question for the commission to resolve as to whether Harris was acting within the course and scope of his employment. Under these facts, there was no need for the commission's exercise of expertise. Nothing in the record puts Harris' tort claim for the injuries he suffered from Neu colliding with the vehicle in which

he was riding within the realm of workers' compensation.(FN3) Conclusion The judgment is reversed, and the case is remanded. Footnotes: FN1. The Court of Appeals, Eastern District, transferred this case to this Court by an opinion authored by the Honorable Sherri B. Sullivan. Mo. Const. art. V, sec. 10. Parts of that opinion are incorporated without further attribution. FN2. All statutory references are to RSMo Supp. 2006. FN3. Respondents contend that Harris asserted a premises liability claim in his petition, which constitutes an admission that he was on Westin's property when the accident occurred. Harris' premises liability claim concerns an alleged hazardous condition on Westin's premises, i.e., the lack of a stop sign, which allowed the collision and injuries to happen to Harris on an adjoining public thoroughfare that is not part of Westin's property. Such a claim does not place Harris on Westin's property. Separate Opinion: None This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court.