This two-part guest article by Mark A. Prost and Tim P. Tryniecki continues our look at the nationwide effort by the plaintiffs’ bar to undermine and poke holes in workers compensation exclusivity laws. Part I looks at how these issues are playing out in the battleground state of Missouri.
The Tooey decision in Pennsylvania, recently addressed in this newsletter, is but one part of a nationwide trend to undermine and poke holes in the so-called “workers compensation exclusivity” laws, whose utility to employers cannot be understated. Historically, numerous states, like Pennsylvania, have had sections of their workers’ compensation acts dictate that a current or former employee’s claim against his employer for personal injury, including latent occupational diseases such as asbestosis, silicosis, and mesothelioma, were limited to an administrative claim for workers’ compensation.
Perhaps not surprisingly, Missouri is another battleground state that has seen the pendulum swing back and forth on this issue. Missouri is considered a hotbed venue for toxic tort claims where hundreds of new civil suits are filed every year alleging lung cancer or mesothelioma caused by asbestos exposure. Almost all cases are filed in the City of St. Louis, which in 2017 received the dubious honor of being named the #1 Judicial Hellhole in the Country by the American Tort Reform Association, at least in part due to the increasing number of asbestos claims and the highly publicized jury verdicts stemming from cases alleging the development of ovarian cancer from cosmetic talcum powder contaminated with asbestos and heavy metals. Missouri’s Workers’ Compensation Act, like Pennsylvania, has long had an exclusivity provision, codified at Rs Mo. §§ 287.120.1-.2. In short, where the workers’ compensation claim is available to an injured employee, a civil suit against the employer is not, and civil courts will lack subject matter jurisdiction over the claim, mandating a dismissal. James v. Poppa, 85 S.W.3d 8, 9 (Mo. banc 2002). (“Whenever it appears by suggestion of the parties or otherwise that the court lacks jurisdiction of the subject matter, the court shall dismiss the action.” (citing Missouri Rule of Civil Procedure 55.27(g)(3)).
As in other states adopting similar provisions, the rationale of this rule was ostensibly to afford more certain remedies for injuries arising out of and in the course of employment, irrespective of fault, by replacing civil tort actions with a clearly defined administrative remedy. Bass v. National Super Markets, Inc., 911 S.W.2d 617, 619 (Mo. 1995)( en banc). In turn, employers and above all liability insurers relished the certainty that the administrative remedy provided, and above all the security of being insulated from potentially limitless civil liability, in a state widely considered to have a pro-plaintiff judiciary and jury pool, not to mention joint and several liability and available punitive damages.
However even as originally conceived, the exclusivity provision was not a slam dunk for employer defendants. Employers were required to demonstrate that they carried workers’ compensation insurance covering the relevant employee and time period(s), and if an occupational disease claimant had (as is often the case) worked for numerous employers over the course of his career, only the final/most recent one could claim the protection (a common requirement of these provisions in other jurisdictions as well, including California).
Missouri’s Workers’ Compensation Act underwent several amendments in 2014 and again in 2017 which were intended to make clear that notwithstanding some recent case law, occupational diseases (and not merely injuries) were covered by the exclusive remedy provision, while also specifically addressing certain particularly serious occupational diseases, including some related to asbestos. Particularly noteworthy is section 287.020.11, which was amended to create a category of occupational diseases known as “occupational diseases due to toxic exposure.” That term was defined using a specific and exclusive list of exemplar diseases, among them mesothelioma and asbestosis.
This new term “occupational diseases due to toxic exposure” in section 287.020.11 was ostensibly added to modify and limit section 287.200.4, which provided that in the event that an employee became permanently and totally disabled or died as the result of one of the specified toxic exposure occupational diseases, that in addition to the normal benefits paid in the case of total disability or death, the employer would also pay 100 weeks of compensation at a rate equal to 200% of the average state wage. In other words, for a specific set of diseases that are unquestionably related to exposure to toxic substances in the workplace, a heightened degree of compensation would now be available to employees, theoretically providing employees (and their attorneys) an incentive to avoid the civil courts and obtain substantial compensation through the more formulaic and less contentious channels of workers’ compensation.
The amendments also created new requirements for employers relating to one of these diseases in particular – mesothelioma – giving them a choice between either purchasing insurance, self-insuring, or pooling together into a mesothelioma compensation fund (§§287.200.4(3), 287.223). An employer who rejected all three options would waive the exclusive remedy provision and be subject to civil liability, but otherwise, the Act and its exclusivity provision would continue to govern even mesothelioma claims. Id.
While these amendments seem logical and straightforward enough, we will examine in part 2 of this article how an apparent omission from the language of the legislation has led to confusion and attempts by plaintiffs to create a loophole in the Missouri statute, while also briefly examining a neighboring and equally active tort jurisdiction, Illinois, and how their statutory protections for employers are designed, but may also be subject to attack by the plaintiffs’ bar.
Perhaps not surprisingly, Missouri is another battleground state that has seen the pendulum swing back and forth on this issue. Missouri is considered a hotbed venue for toxic tort claims where hundreds of new civil suits are filed every year alleging lung cancer or mesothelioma caused by asbestos exposure. Almost all cases are filed in the City of St. Louis, which in 2017 received the dubious honor of being named the #1 Judicial Hellhole in the Country by the American Tort Reform Association, at least in part due to the increasing number of asbestos claims and the highly publicized jury verdicts stemming from cases alleging the development of ovarian cancer from cosmetic talcum powder contaminated with asbestos and heavy metals. Missouri’s Workers’ Compensation Act, like Pennsylvania, has long had an exclusivity provision, codified at Rs Mo. §§ 287.120.1-.2. In short, where the workers’ compensation claim is available to an injured employee, a civil suit against the employer is not, and civil courts will lack subject matter jurisdiction over the claim, mandating a dismissal. James v. Poppa, 85 S.W.3d 8, 9 (Mo. banc 2002). (“Whenever it appears by suggestion of the parties or otherwise that the court lacks jurisdiction of the subject matter, the court shall dismiss the action.” (citing Missouri Rule of Civil Procedure 55.27(g)(3)).
As in other states adopting similar provisions, the rationale of this rule was ostensibly to afford more certain remedies for injuries arising out of and in the course of employment, irrespective of fault, by replacing civil tort actions with a clearly defined administrative remedy. Bass v. National Super Markets, Inc., 911 S.W.2d 617, 619 (Mo. 1995)( en banc). In turn, employers and above all liability insurers relished the certainty that the administrative remedy provided, and above all the security of being insulated from potentially limitless civil liability, in a state widely considered to have a pro-plaintiff judiciary and jury pool, not to mention joint and several liability and available punitive damages.
However even as originally conceived, the exclusivity provision was not a slam dunk for employer defendants. Employers were required to demonstrate that they carried workers’ compensation insurance covering the relevant employee and time period(s), and if an occupational disease claimant had (as is often the case) worked for numerous employers over the course of his career, only the final/most recent one could claim the protection (a common requirement of these provisions in other jurisdictions as well, including California).
Missouri’s Workers’ Compensation Act underwent several amendments in 2014 and again in 2017 which were intended to make clear that notwithstanding some recent case law, occupational diseases (and not merely injuries) were covered by the exclusive remedy provision, while also specifically addressing certain particularly serious occupational diseases, including some related to asbestos. Particularly noteworthy is section 287.020.11, which was amended to create a category of occupational diseases known as “occupational diseases due to toxic exposure.” That term was defined using a specific and exclusive list of exemplar diseases, among them mesothelioma and asbestosis.
This new term “occupational diseases due to toxic exposure” in section 287.020.11 was ostensibly added to modify and limit section 287.200.4, which provided that in the event that an employee became permanently and totally disabled or died as the result of one of the specified toxic exposure occupational diseases, that in addition to the normal benefits paid in the case of total disability or death, the employer would also pay 100 weeks of compensation at a rate equal to 200% of the average state wage. In other words, for a specific set of diseases that are unquestionably related to exposure to toxic substances in the workplace, a heightened degree of compensation would now be available to employees, theoretically providing employees (and their attorneys) an incentive to avoid the civil courts and obtain substantial compensation through the more formulaic and less contentious channels of workers’ compensation.
The amendments also created new requirements for employers relating to one of these diseases in particular – mesothelioma – giving them a choice between either purchasing insurance, self-insuring, or pooling together into a mesothelioma compensation fund (§§287.200.4(3), 287.223). An employer who rejected all three options would waive the exclusive remedy provision and be subject to civil liability, but otherwise, the Act and its exclusivity provision would continue to govern even mesothelioma claims. Id.
While these amendments seem logical and straightforward enough, we will examine in part 2 of this article how an apparent omission from the language of the legislation has led to confusion and attempts by plaintiffs to create a loophole in the Missouri statute, while also briefly examining a neighboring and equally active tort jurisdiction, Illinois, and how their statutory protections for employers are designed, but may also be subject to attack by the plaintiffs’ bar.
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