Michael Ard v. Jim Plunkett, Inc.

**Injury No. 10-085096**

**Employee: Michael Ard (deceased)**

On September 26, 2014, employee, through his estate, filed a Motion to Submit Additional Evidence (1st Motion) with the Commission. Therein, employee alleged that a Judgment and Decree of Annulment entered by the Circuit Court of Jackson County on January 27, 2014, was set aside and vacated by order dated September 15, 2014. Employee attached a copy of the order to his 1st Motion as Exhibit A and requested that the Commission allow employee to submit it as evidence in this case.

On October 6, 2014, the alleged dependent, Victoria Ard, filed a Motion to Stay Appeal Proceedings with the Commission. Therein, Ms. Ard alleged that proceedings were ongoing before the Circuit Court of Jackson County with respect to the annulment matter. On October 6, 2014, the Commission acknowledged both employee's 1st Motion and Ms. Ard's Motion to Stay Appeal Proceedings, and suspended the briefing schedule in this matter.

On February 10, 2015, employee, through his estate, filed Employee's Second Motion to Submit Additional Evidence (2nd Motion) with the Commission. Therein, employee alleged that on February 5, 2015, the Circuit Court of Jackson County issued a judgment denying Ms. Ard's petition for declaration of invalidity of marriage. Employee attached a copy of the order to his 2nd Motion as Exhibit A and requested that the Commission allow employee to submit it as evidence in this case.

By order dated April 21, 2015, the Commission directed all interested parties to show cause within 15 days why the Commission should not issue an order accepting into the record of evidence in this matter the exhibits attached to employee's 1st and 2nd Motions. Having received no objection, the Commission issued an order on May 28, 2015, accepting into the record of evidence in this matter the exhibits attached to employee's 1st and 2nd Motions, designated as Exhibits A1 and B1, and resuming the briefing schedule.

The Commission received briefs filed on behalf of employee's estate and the employer, but did not receive any brief filed by the alleged dependent, Victoria Ard. On August 6, 2015, the Commission re-mailed to Ms. Ard copies of the orders of Commission entered in this matter on April 21, 2015, and May 28, 2015, because a review of the legal file suggested previous mailings to Ms. Ard at her last known address of record were returned as undeliverable. In a correspondence included with those orders, the Commission advised Ms. Ard that she had until September 7, 2015, to file a brief. To date, we have not received any response to our correspondence of August 6, 2015, from Ms. Ard or from an attorney on her behalf.

For the reasons stated below, we modify the award of the administrative law judge as to the issue of dependency and the appropriate successor to employee's rights herein.

**These proceedings are revived pursuant to § 287.580 RSMo**

The parties agree that employee died on September 14, 2013, after the initial hearing before the administrative law judge, but before any award was issued. Employer filed a Motion to Stay Proceedings with the Division of Workers' Compensation (Division) on

September 24, 2013, notifying the administrative law judge of employee's death and requesting that the proceedings be stayed until a determination could be made as to the appropriate party to continue employee's claim. The administrative law judge thereafter reopened the record on February 28, 2014, to permit the parties to present evidence as to the issue of dependency. He then issued an award of compensation in favor of employee's alleged dependent, Victoria Ard.

However, to date, there has been no finding pursuant to § 287.580 RSMo that these proceedings are revived and may proceed in favor of the successor to employee's rights. Section 287.580 controls whenever a party dies while proceedings are pending before the Division or Commission:

> If any party shall die pending any proceedings under this chapter, the same shall not abate, but on notice to the parties may be revived and proceed in favor of the successor to the rights or against the personal representative of the party liable, in like manner as in civil actions.

The foregoing language refers us to Missouri Supreme Court Rule 52.13(a), which sets forth a specific procedure for substituting the proper party to continue an action whenever a party to the action dies:

> If a party dies and the claim is not thereby extinguished, the court may, upon motion, order substitution of the proper parties. Suggestion of death may be made by any party or person in interest by the service of a statement of the fact of the death as provided herein for the service of a motion. A motion for substitution may be made by any party or by the successor or representative of the deceased party. Such motion, together with notice of hearing shall be served upon the parties as provided in Rule 43.01, and upon persons not parties in the manner provided for the service of a summons. Unless a motion for substitution is served within 90 days after a suggestion of death is filed, the action shall be dismissed as to the deceased party without prejudice.

Clearly, the foregoing procedures were not followed in this case. However, given that the interested parties were afforded a full and fair opportunity at the hearing before the administrative law judge of February 28, 2014, to present evidence as to the circumstances of employee's death and the appropriate successor to employee's rights, and because the parties do not object to our jurisdiction over this appeal, we conclude that the parties have received proper notice, and that the filing of a formal suggestion of death and motion to substitute parties pursuant to Rule 52.13(a) are not prerequisites to our application of § 287.580 in this case. This accords with the mandate of § 287.550 RSMo that "[a]ll proceedings before the commission or any commissioner shall be simple, informal, and summary[.]" We conclude that, pursuant to § 287.580, these proceedings are revived, and may proceed in favor of the successor to employee's rights.

Victoria Ard married David Pflugradt on September 2, 1992, in Platte County, Missouri. On September 8, 2001, Ms. Ard attempted to marry employee in Jackson County, Missouri. As of September 8, 2001, Ms. Ard had never attempted to dissolve or otherwise nullify her prior marriage to Mr. Pflugradt.

At the time of her purported September 2001 marriage to employee, Ms. Ard told employee that Mr. Pflugradt had died and that she was a widow. But Mr. Pflugradt had not died, and had never filed for divorce or otherwise attempted to dissolve his September 1992 marriage to Ms. Ard.

Following employee's death on September 14, 2013, Ms. Ard filed a Petition for Declaration of Invalidity of Marriage on November 27, 2013, in the Circuit Court of Jackson County, Missouri, seeking to annul her marriage to Mr. Pflugradt. On January 27, 2014, Ms. Ard appeared before the court to take up her Petition. Mr. Pflugradt was not present. Employee's estate did not receive notice of these proceedings, so there was no appearance on behalf of employee's estate at the hearing of January 27, 2014. Following the hearing, the court issued a Judgment \& Decree of Invalidity of Marriage that same day, granting an annulment of Ms. Ard's marriage to Mr. Pflugradt. The court found that the Pflugradt marriage was invalid from its inception because Mr. Pflugradt lacked the mental capacity to fully appreciate the marriage contract.

On January 13, 2014, the Probate Division of the Circuit Court of Jackson County, Missouri, issued Letters of Administration appointing employee's father, Gilbert Ard, as the personal representative of employee's estate. On July 22, 2014, employee's estate filed with the court a Motion to Intervene and to Set Aside Default Judgment challenging the January 27, 2014, Judgment and Decree of Annulment.

On September 15, 2014, the court issued an order vacating and setting aside the January 27, 2014, Judgment and Decree of Annulment and ordered that employee's estate was permitted to intervene in the matter. On February 3, 2015, the court held a hearing to once again take up Ms. Ard's Petition for Declaration of Invalidity of Marriage. This time, employee's estate was present and participated in the hearing. That same day, the court entered a judgment denying Ms. Ard's petition. No appeal was taken.

In light of the proceedings before the circuit court, we find that Ms. Ard remains married to David Pflugradt, and that she was married to David Pflugradt on September 8, 2001, when she attempted to marry employee. Section 451.030 RSMo provides that "[a]ll marriages, where either of the parties has a former wife or husband living, shall be void, unless the former marriage shall have been dissolved." Consequently, we conclude that Ms. Ard's attempted marriage to employee was bigamous and void at its inception.

Section 287.240(4) RSMo defines a "dependent" for purposes of the Missouri Workers' Compensation Law, as follows:

The word "dependent" as used in this chapter shall be const