Mark McGuire v. Christian County Sheriff's Department; Ozark Baseball Club

Injury No.: 03-082360

Employee: Mark McGuire

Employers: 1) Christian County Sheriff's Department (Settled)

2) Ozark Baseball Club (Alleged)

Insurers: 1) Missouri Association of Counties (Settled)

2) Traveler's Commercial Casualty Company (Alleged)

Additional Party: Treasurer of Missouri as Custodian of Second Injury Fund

This workers' compensation case is submitted to the Labor and Industrial Relations Commission (Commission) for review as provided by $\S 287.480 RSMo. { }^{1}$ We have reviewed the evidence, heard the parties' arguments and considered the whole record and we find that the award of the administrative law judge is supported by competent and substantial evidence and was made in accordance with the Missouri Workers' Compensation Law, except as modified herein. We adopt the findings, conclusions, decision, and award of the administrative law judge to the extent that they are not inconsistent with the findings, conclusions, decision, and modifications set forth below.

We affirm the administrative law judge's award as it relates to employee's claim against the Second Injury Fund.

We reverse the administrative law judge's award as it relates to the claim of Christian County Sheriff's Department/Missouri Association of Counties (CCSD) against Ozark Baseball Club (OBC). The reader is directed to the administrative law judge's award attached hereto for details regarding how the employee in this matter was injured. For purposes of this award, we will make and/or recite only those findings necessary for a clear understanding of the rights of CCSD vis-à-vis OBC.

Briefly, employee was a full-time CCSD sheriff's deputy. He also worked as a uniformed security guard for OBC, a minor league baseball club. On August 9, 2003, an inebriated driver hit employee with a car in the OBC parking lot while employee was attempting to stop the driver from driving under the influence.

Below is a timeline of relevant events in the life of this claim:

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[^0]: ${ }^{1}$ Statutory references are to the Revised Statutes of Missouri 2003, unless otherwise indicated.

Employee filed a workers' compensation claim against CCSD. Employee did not file a claim against OBC. Although CCSD was aware of the circumstances of the employee's injury, CCSD took no action to make OBC a party to employee's claim until March 16, 2009 $-51 / 2$ years after the injury.

CCSD's March 16, 2009, request (event G in timeline) is entitled Application of Christian County Pursuant to Section 287.040.3 to Make Ozark Baseball Club, L.C. a Party to the Proceedings (hereinafter, "CCSD Joinder Request"). By the CCSD Joinder Request, CCSD alleged, among other things:

Employee was providing security for and work on the premises of Price Cutter Ballpark, where the Ozark Mountain Ducks, a minor league baseball team played their home games.

Discovery has determined that the [employee] was actually under a contract with and working under the direction and control of the [OBC]...on the date of the alleged injury...

[CCSD recited the provisions of the 2005 version of subsection 287.040.1 and 287.040.3 RSMo. $]^{2}$

Employee was employed by the [OBC] on their premises, under their control which results in said employer being primarily responsible for the injuries to the employee occurring on August 9, 2003.

Christian County and Gallagher Bassett Services, Inc. have paid medical expenses in the amount of $\ 146,482.13 with the last payment on March 9, 2009 and temporary total disability in the amount of $\ 9,836.14 with the last payment made on July 20, 2007.

As the primary employer, [OBC] should be a party to these proceedings and should be ordered to reimburse Christian County and Gallagher Bassett Services, Inc. all expenses incurred including costs of defense and pay any further liabilities ordered herein.

By handwritten notation on CCSD's Joinder Request, the administrative law judge granted the request to join OBC as a party and deferred ruling other issues.

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[^0]: ${ }^{2} The 2003 version of \S 287.040$ is applicable to this case but the administrative law judge and the parties referenced the 2005 version. The relevant provisions of each version are identical.

The record reveals that OBC challenged the administrative law judge's action in granting the CCSD's Joinder Request at every opportunity, including at the December 22, 2011, hearing.

The administrative law judge initially described one issue in dispute as "[w]hether or not Christian County's motion to bring in Ozark Baseball Club, LLC as a party was appropriately sustained." Counsel for OBC requested clarification: "I would ask that that specifically call into question whether that was appropriate in that Christian County cited Section 287.040.3." Counsel for CCSD responded, "that was just one of many reasons in the application that we offered in support, so we weren't specifically limiting just to that, but I think that narrows the issue way too much..." The administrative law judge ultimately framed the issue thusly:

I am going to leave the issue as to whether or not...I think it's more...I think it's beneficial to both parties to leave the issue as to whether it was appropriate to bring the Ozark Baseball Club, Incorporated in as a party, okay?

In resolution of the joinder issue, the administrative law judge concluded:

While the evidence eventually failed to prove a contractual relationship between Ozark Baseball Club and CCSD, does not mean the initial joinder was improper. Subsequent to its joinder, however, other reasons were raised to keep Ozark Baseball Club in the case.

As the case has developed, CCSD and MAC actually had a different reason for joining the Ozark Baseball Club. Counsel for CCSD and MAC have conceded that the wrong statute may have been cited in the original motion seeking to join Ozark Baseball Club. As made evident at the final hearing, and as clearly demonstrated in its post-hearing brief, CCSD and MAC seek money from Ozark Baseball Club as a "joint employer" rather than as a subcontractor. Such action is authorized in the Workers' Compensation Law:

If the injury or death occurs while the employee is in the joint service of two or more employers, their liability shall be joint and several, and the employee may hold any or all of such employers. As between themselves such employers shall have contribution from each other in the proportion of their several liability for the wages of such employee but nothing in this chapter shall prevent such employers from making a different distribution of their proportionate contributions as between themselves.

§ 287.130, RSMo. CCSD and its insurer have a statutory right to proceed against Ozark Baseball Club as a joint employer, even if the employee

never named Ozark Baseball Club as a party in its Claim for Compensation.

Even if it may be said that the Administrative Law Judge erred in initially joining Ozark Baseball Club as a party under § 287.140 RSMo, it was not improper to join that entity for purposes of contribution under § 287.130 RSMo. A bench-tried ruling that reaches the correct result will not be set aside even if the court gives a wrong or insufficient reason. *Tate v. Director of Revenue*, 982 S.W.2d 724, 727 (Mo. App. E.D. 1998). I conclude that it was proper to join Ozark Baseball Club either for reimbursement or contribution. Even if the wrong statutory provision initially was cited, the proceeding against the alleged joint employer is authorized by statute.

The administrative law judge ultimately ruled employee was in the joint employment of CCSD and OBC at the time of the accident. The administrative law judge awarded contribution from OBC to CCSD.

OBC filed an application for review challenging the administrative law judge's award of contribution from OBC to CCSD. CCSD filed an application challenging the administrative law judge's calculation of the amount of contribution due CCSD from OBC.

Section 287.040 RSMo (2003) provides, in relevant part:

1. Any person who has work done under contract on or about his premises which is an operation of the usual business which he or her 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.

1. In all cases mentioned in the preceding subsections, the immediate contractor or subcontractor shall be liable as an employer of the employees of his subcontractors. All persons so liable may be made parties to the proceedings on the application of any party. The liability of the immediate employer shall be primary, and that of the others secondary in their order, and any compensation paid by those secondarily liable may be recovered from those primarily liable, with attorney's fees and expenses of the suit. Such recovery may be had on motion in the original proceedings. No such employer shall be liable as in this section provided, if the employee was insured by his immediate or any intermediate employer.

Improve: Mark McGuire

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Section 287.130 RSMo (2003) provides:

If the injury or death occurs while the employee is in the joint service of two or more employers, their liability shall be joint and several, and the employee may hold any or all of such employers. As between themselves such employers shall have contribution from each other in the proportion of their several liability for the wages of such employee but nothing in this chapter shall prevent such employers from making a different distribution of their proportionate contributions as between themselves.

At the outset, we note that CCSD's entitlement to contribution from OBC under § 287.130 RSMo was not identified as an issue for resolution at trial. The administrative law judge's decision to rule against OBC on that basis likely runs afoul of due process. See Stonecipher v. Poplar Bluff R1 Sch. Dist., 205 S.W.3d 326 (Mo. App. 2006). And, arguably, the administrative law judge's ruling regarding contribution went beyond the stipulated issues for trial and, thus, the ruling was in excess of her power. ${ }^{3}$ See Boyer v. Nat'l Express Co., 49 S.W.3d 700 (Mo. App. 2001). Because we believe the administrative law judge erred as a matter of law in concluding OBC is a party to this proceeding, we will not discuss these matters further.

Although the administrative law judge's decision in 2009 to add OBC as a party to these proceedings on the request of CCSD may have been appropriate, the administrative law judge's decision to continue OBC as a party after she determined § 287.040.4 was not applicable was erroneous. Once the administrative law judge determined joinder under $\S 287.040 .4$ was inappropriate, the administrative law judge should have dismissed OBC from the proceedings. This is so because the provision the administrative law judge relied upon to keep OBC in this case - § 287.130 RSMo - does not confer upon CCSD, the administrative law judge, or the Commission the power to add OBC as a party to employee's workers' compensation claim.

In this statute, the General Assembly articulated that the emp