Luis Estrada v. Thunder Framing & Construction, Inc.

Issued by THE LABOR AND INDUSTRIAL RELATIONS COMMISSION

(Affirming Award and Decision of Administrative Law Judge)

**Injury No.:** 15-102640

**Employee:** Luis Estrada (Deceased)

**Dependents:** Norma Salcido (Wife)

**Employer:** Thunder Framing & Construction, Inc., et al.

**Insurer:** Technology Insurance Company, Inc., et al.

On May 27, 2022, an administrative law judge (ALJ) issued as a temporary or partial award an "Award on Insurance Coverage" (Award). On June 15, 2022, employer Burkhart Construction Inc. (Burkhart) and its insurer Carolina Casualty Insurance Company (Carolina) filed with the Labor and Industrial Relations Commission (Commission) an application for review of the ALJ's Award. In its application for review, Burkhart/Carolina requested to file a brief and present oral argument.

The Commission has reviewed the briefs submitted by the parties in this case. Although the Commission recognizes the importance of oral argument, the issues presented in this case may be determined without oral argument.

Having reviewed the evidence and considered the whole record, the Commission finds that the ALJ's Award is supported by competent and substantial evidence and was made in accordance with the Missouri Workers' Compensation Law. Pursuant to § 286.090 RSMo, the Commission affirms the award and decision of the administrative law judge dated May 27, 2022.

The ALJ's temporary or partial award and decision issued on May 27, 2022 is attached and incorporated by this reference.

Given at Jefferson City, State of Missouri, this 1st day of November 2022.

**LABOR AND INDUSTRIAL RELATIONS COMMISSION**

Rodney J. Campbell, Chairman

Shalonn K. Curls, Member

Kathryn Swan, Member

Attest:

Secretary

Employee: Luis Estrada (Deceased)

Injury No. 15-102640

Dependents: Norma Salcido (Wife)

Employer: Thunder Framing \& Construction, Inc., et al.

Insurer: Technology Insurance Company, Inc. et al.

Additional Party: N/A

Hearing Date: February 23, 2022

Checked by: KAE

1. Are any benefits awarded herein? N/A
2. Was the injury or occupational disease compensable under Chapter 287? Yes
3. Was there an accident or incident of occupational disease under the Law? Yes
4. Date of accident or onset of occupational disease: November 21, 2015
5. State location where accident occurred or occupational disease was contracted: Jasper County, Missouri
6. Was above employee in employ of above employer at time of alleged accident or occupational disease? Yes
7. Did employer receive proper notice? Yes
8. Did accident or occupational disease arise out of and in the course of the employment? Yes
9. Was claim for compensation filed within time required by Law? Yes
10. Was employer insured by above insurer? Thunder Framing and Construction, Inc. was not insured by Technology Insurance for accidents under the Law.
11. Describe work employee was doing and how accident occurred or occupational disease contracted: Employee was performing construction work in a makeshift wooden box that was being elevated by a forklift when he fell out of the box striking the ground, which was the prevailing factor causing massive head injuries and his death.
12. Did accident or occupational disease cause death? Yes. Date of death? November 21, 2015
13. Part(s) of body injured by accident or occupational disease: Death.
14. Nature and extent of any permanent disability: Death.
15. Compensation paid to-date for temporary disability: N/A
16. Value necessary medical aid paid to date by employer/insurer? N/A

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Luis Estrada

1. Value necessary medical aid not furnished by employer/insurer? N/A
2. Employee's average weekly wages: N/A
3. Weekly compensation rate: N/A
4. Method wages computation: N/A

1. Amount of compensation payable:

TOTAL: NOT DETERMINED AT THIS TIME.

1. Future requirements awarded: N/A

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Luis Estrada (Deceased) Injury No. 15-102640

FINDINGS OF FACT and RULINGS OF LAW:

Employee: Luis Estrada (Deceased) Injury No. 15-102640

Dependents: Norma Salcido (Wife)

Employer: Thunder Framing \& Construction, Inc., et al.

Insurer: Technology Insurance Company, Inc., et al.

Additional Party: N/A

Hearing Date: February 23, 2022

Checked by: KAE

A hearing was held on February 23, 2022, by video conference with the Division of Workers' Compensation in Joplin, Missouri. Norma Salcido (henceforth "Dependent"), dependent of Luis Estrada (henceforth "Decedent-Employee") was represented by Attorney William E. Peterson. Thunder Framing \& Construction, Inc. (henceforth "Thunder") was represented by Attorney Matthew J. Barnhart. Technology Insurance Company (henceforth "Technology") was represented by Attorney Gregory T. Cook. Burkhart Construction, Inc. (henceforth "Burkhart) and its insurer, Carolina Casualty Insurance Company (henceforth "Carolina") were represented by Attorney Clayton T. Fielder. ARCO Construction Company Inc. (henceforth "ARCO") and its insurer, Old Republic, c/o Gallagher Bassett Services, Inc. (henceforth "Old Republic") were represented by Attorney James W. Gallen.

Prior to the date of the hearing the parties complied with a scheduling order wherein they submitted multiple briefs presenting their arguments on the issue of insurance coverage.

On the date of the hearing the record was opened and the parties entered evidence focused on the issue of insurance coverage with the understanding that the Court will issue an Award dispositive of that sole issue in this bifurcated hearing. The parties were permitted to submit proposed awards resulting in the record being completed and closed on March 23, 2022.

At the time of the hearing, the parties agreed on certain stipulated facts and identified the issues in dispute. These stipulations and the disputed issues, together with the findings of fact and rulings of law are set forth below as follows:

The parties stipulated to the following:

1. Luis, Estrada, (henceforth "Decedent-Employee") was born on May 9, 1986.
2. On November 21, 2015, Decedent-Employee was working subject to the Missouri Workers' Compensation Law (henceforth "the Law") in Carthage, Jasper County, Missouri on a construction project (henceforth "the construction project").

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Luis Estrada

Injury No. 15-102640

1. On November 21, 2015, Decedent-Employee was killed in a fall accident at the construction project, which arose out of and in the course and scope of his employment.
2. On November 21, 2015, Mundo Hernandez Construction (henceforth "Mundo") was an employer operating subject to the Law and Decedent-Employee was a direct employee of Mundo working on the construction project.
3. Prior to November 21, 2015, Decedent-Employee was hired in the state of Texas by Mundo.
4. Earlier, on September 21, 2015, Mundo had subcontracted with Thunder to provide specific work stated therein relative to the construction project.
5. On September 21, 2015, Thunder had subcontracted with Burkhart to provide specific work stated therein relative to the construction project.
6. On September 13, 2015, Burkhart had subcontracted with ARCO to provide specific work stated therein relative to the construction project.
7. On November 21, 2015, Burkhart's liability for Missouri Workers' Compensation benefits was fully insured by Carolina.
8. On November 21, 2015, ARCO was an employer operating subject to the Law and ARCO's liability for Missouri Workers' Compensation benefits was fully insured by Old Republic.
9. Mundo failed to provide workers' compensation insurance coverage to its employees, including Decedent-Employee, for work on the construction project and Mundo has paid no benefits herein.
10. On September 29, 2015, Thunder's insurance agent, Commercialinsurance.NET, issued a Certificate of Liability Insurance (henceforth "Certificate") listing Thunder as the Insured and Burkhart as the Certificate Holder. The Certificate lists the Workers' Compensation and Employers' Liability insurer as Technology with a Policy Number of 03-38071-15166197190 that was effective from June 5, 2015, through June 5, 2016.
11. On November 21, 2015, Thunder did not have any other insurance policy in place that provided any type of workers' compensation insurance coverage to its employees besides the aforesaid policy with Technology.

The sole issue for resolution is:

1) Which insurance policy provides primary coverage for Decedent-Employee's death?

The Parties offered the following exhibits which were admitted into evidence without objection:

Exhibit 1: A true and accurate copy of the Subcontractor Agreement between Mundo Hernandez Construction (henceforth "Mundo") and Thunder.

Exhibit 2: A true and accurate copy of the Subcontractor Agreement between Thunder and Burkhart.

Exhibit 3: A true and accurate copy of the Certificate of Liability Insurance.

Exhibit 4: A true and accurate copy of the Technology Insurance Policy Number TARAR79853-00.

Exhibit 5: A true an accurate copy of the Subcontractor Agreement between Burkhart and ARCO.

Exhibit 6: A true and accurate copy of the September 8, 2020, deposition of the Technology Insurance Corporate Representative, Steve Cooper.

Exhibit 7: Documents bates stamped Technology 000001 - Technology000109.

Exhibit 8: Decedent-Employee's Initial Brief

Exhibit 9: Technology's Initial Brief

Exhibit 10: Burkhart's Initial Brief

Exhibit 11: ARCO's Initial Brief

Exhibit 12: Decedent-Employee's Response Brief

Exhibit 13: Technology's Response Brief

Exhibit 14: Burkhart's Response Brief

Exhibit 15: ARCO's Response Brief

Exhibit 16: Decedent-Employee's Reply Brief

Exhibit 17: Technology's Reply Brief

Exhibit 18: Burkhart's Reply Brief

Exhibit 19: ARCO's Reply Brief

Exhibit 20: A true and accurate copy of the March 5, 2019, deposition of Ector Enciso

Prior to November 21, 2015, the construction project was commenced which included the construction of an assisted living facility in Carthage, Missouri. At all times relevant, Defendant ARCO was the owner of the premises on which the construction project was commenced. ARCO was the general contractor of the assisted living facility construction project. ARCO was at all times relevant an employer operating subject to the Law. ARCO's liability for workers' compensation benefits in the state of Missouri was fully insured by Old Republic.

As the general contractor of the project, ARCO contracted with Defendant Burkhart to construct the construction project. Burkhart was at all times relevant an employer operating subject to the Law. Burkhart's liability for Missouri Workers' Compensation was fully insured by Carolina.

Burkhart then contracted with Defendant Thunder to do the framing work on the construction project. Thunder, however, was not able to complete the framing project as contracted, therefore it contracted with Defendant Mundo to actually perform the framing on the construction project. Decedent-Employee was the direct employee of Mundo. He was hired in the state of Texas. It is not disputed that Decedent-Employee was not directly employed by any other Employer at any time prior to or during the construction project.

On November 21, 2015, Decedent-Employee died while working on the construction project. He was killed after falling over 10 feet from a wooden box that was being hoisted by a tractor, resulting in severe head trauma after the box struck him on the head. Thereafter, DecedentEmployee's wife, Norma Salcido, (henceforth "Dependent") filed a Claim for Compensation on November 28, 2017, seeking benefits under Missouri Workers' Compensation from Burkhart. On February 7, 2018, Dependent filed an amended Claim for Compensation adding Thunder, Mundo, ARCO, and Carthage, Missouri Living Operating Company, LLC, as Defendants.

Mundo was an employer operating subject to the Law. However, Mundo