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

This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court. Opinion Missouri Court of Appeals Eastern District Case Style: David Harris, Claimant/Appellant v. Westin Management Company East and Jeremy Neu, Defendants/Respondents. Case Number: ED88250 Handdown Date: 02/27/2007 Appeal From: Circuit Court of the City of St. Louis, Hon. Thomas Grady Counsel for Appellant: David N. Damick Counsel for Respondent: Mara Halpert Cohara Opinion Summary:

David Harris was injured in a car accident that occurred on his way to work when the car he was riding in was hit by a Westin Hotel van. At the time of the accident, Harris was employed by Westin Hotel. The trial court dismissed Harris's suit without prejudice for lack of primary subject matter jursidiction 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 from the trial court's dismissal of his petition for lack of subject matter jurisdiction. TRANSFERRED to the SUPREME COURT. Division Four holds: The trial court erred in dismissing Harris's petition for lack of subject matter jurisdiction because a preponderance of evidence in the record did not suggest that Harris's claims were governed exclusively by workers' compensation law. Citation: Opinion Author: Sherri B. Sullivan, J.

Opinion Vote: TRANSFERRED to the SUPREME COURT. Richter, P.J. and Crane, J., concur. Opinion: Introduction David Harris (Appellant) appeals from the trial court's judgment dismissing his petition for lack of subject matter jurisdiction. We transfer to the Supreme Court. Factual and Procedural Background On December 11, 2002, Appellant was injured while riding to work as a passenger in the right front seat of a vehicle owned and driven by Felicia Lambert (Lambert), when Lambert's vehicle was broadsided on the passenger side by a Westin Hotel van being driven by Jeremy Neu (Neu) out of the Westin Hotel driveway and onto Spruce Street, the public thoroughfare upon which Appellant and Lambert were traveling. At the time of the accident, Appellant was employed at the Westin Hotel, as was Neu. Westin Hotel is owned and operated by Respondent Westin Management Company East (Westin). 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 Appellant was traveling to work. Appellant filed a suit against Westin and Neu for the injuries he sustained from the accident. Appellant also submitted a claim pro se for workers' compensation arising out of the accident, which he later dismissed pro se. The trial court dismissed Appellant's 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 (Commission). This appeal follows. Points on Appeal

Appellant presents three points on appeal, the first of which is dispositive of this appeal. Appellant 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 A motion to dismiss for lack of subject matter jurisdiction is an appropriate means of raising the workers' compensation law as a defense to a common law tort action, as provided in Chapter 287 of the Missouri Revised Statutes (2006). Crow v. Kansas City Power & Light Co., 174 S.W.3d 523, 527 (Mo.App. W.D. 2005); State ex rel. McDonnell Douglas Corp. v. Ryan, 745 S.W.2d 152, 153 (Mo.banc 1988). Whether there is subject matter jurisdiction is a question of fact left to the sound discretion of the trial judge. James v. Poppa, 85 S.W.3d 8, 9 (Mo.banc 2002).(FN1) Discussion The trial court found that: "It is apparent to the Court that the Westin is an employer subject to the Workers' Compensation Act and that both Plaintiff and Neu were employees of the Westin at the time of the accident." 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). The trial court went on to note: "Accordingly, the Court concludes that it lacks subject matter jurisdiction...." For the trial court to act within its discretion to dismiss a case for lack of subject matter jurisdiction based on the exclusivity of workers' compensation law, it must appear by the preponderance of the evidence that the court is without jurisdiction. Poppa, 85 S.W.3d at 9. It does not appear so in this case. We find that there was not a preponderance of evidence demonstrating that this was a case governed by workers' compensation law. The record shows that Appellant was not at work at the time of the accident. As such, the fact that an employer/employee relationship exists between Appellant and the employer of the tortfeasor is incidental to Appellant's civil cause of action. Furthermore, the question of whether or not Appellant was acting within the course and scope of his employment is moot, because Appellant was not at work.

Although it is true, as Respondents argue, that the trial court has the authority to determine whether a plaintiff was an employee at the time of the accident, but may not determine whether the accident arose out of and in the course of the plaintiff's employment because such a determination is solely within the province of the Commission, Killian, 802 S.W.2d at 158, such an argument is inconsequential to the factual scenario before us. Neu collided with the car in which Appellant was riding while Appellant was on his way to work. Respondents present no evidence creating a factual dispute as to this very determinative issue. There is no factual dispute that Appellant was on a public street at the time of the collision, and he was not yet at work. There are no disputed issues of fact regarding these key elements that require this case to be sent to the Commission for its determination. This Court finds, as a matter of undisputed fact, that Appellant was not at work when the accident at issue occurred. This Court also finds, as a matter of law, without treading into the territory of issues reserved for the Commission's determination regarding whether or not one's actions are done within the course and scope of one's employment, that when one is not at work, but merely driving by his or her place of employment on a public street, workers' compensation law does not apply. Going to or returning from employment is one of those essential conditions of employment [in] 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. [Citations omitted]. 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 v. Welsh Co., 748 S.W.2d 720, 724-25 (Mo.App. E.D. 1988). Nothing in the record before us puts Appellant's tort claim for the injuries he suffered from Neu colliding with the car in which he was riding within the realm of workers' compensation.(FN2) Based on the foregoing, Appellant's Point I is granted, rendering Points II and III moot.

Conclusion Our resolution of Point I normally would result in a reversal of the trial court's judgment, but in light of the importance of the issue presented and for guidance regarding the extent of a trial court's authority to determine its own jurisdiction in cases where workers' compensation exclusivity is alleged, we order this case transferred to the Missouri Supreme Court pursuant to Missouri Rule of Civil Procedure 83.02.

Footnotes: FN1.For a fuller discussion of this issue, see Crow, 174 S.W.3d at 528. FN2.Respondents maintain that Appellant asserted a premises liability claim in his petition, which constitutes an admission that he was on Westin's property when the accident occurred. We find that Appellant's 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 Appellant on an adjoining public thoroughfare that is no part of Westin's property. Such a claim does not place Appellant 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.