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07/12/83 SHIRLEY ZAHN v. ASSOCIATED DRY GOODS CORP.

July 12, 1983

SHIRLEY ZAHN, PLAINTIFF-APPELLANT
v.
ASSOCIATED DRY GOODS CORP. AND CRAIG S. CLARK, DEFENDANT-RESPONDENT



From the Circuit Court of the City of St. Louis; Civil Appeal; Judge James S. Corcoran.

Before Simon, P.j., Stephan, Karohl, JJ.

The opinion of the court was delivered by: Karohl

Plaintiff-appellant Shirley Zahn brought suit against her employer, defendant-respondent Associated Dry Goods and defendant-respondent Craig S. Clark, Director of Loss Prevention at Stix, Baer and Fuller, a division of Associated Dry Goods. Plaintiff claimed damages for personal injuries after she was assaulted, raped, and robbed in the downtown St. Louis Stix, Baer and Fuller store parking garage. She appeals from the trial court order dismissing her petition for lack of subject matter jurisdiction.

Plaintiff was a waitress in the restaurant located on the sixth floor of the Stix, Baer and Fuller store. At the time of the assault defendant Associated Dry Goods owned the store and the adjacent parking garage. The garage was connected to the store by an indoor skywalk linking the fifth floor of the garage with the third floor of the store.

On September 8, 1981, plaintiff had ended her shift at about 2:20 or 2:30 P.M. She turned in her receipts for the day and changed out of her waitress uniform. At about 2:30 she took the store escalator from the sixth floor to the third floor, where ther skywalk to the garage was located. Plaintiff stopped at the dress department on the third floor, and browsed through the racks of dresses for about twenty minutes. Noting the time, she realized that unless she removed her car from the parking garage, she would have to pay for an extra hour. Plaintiff did not try on or buy a dress, or stop in any other department in the store.

Plaintiff then passed through the third floor skywalk to the garage entrance, where there was an enclosed "elevator lobby." As she was entering one of the elevators to get to her car on the ninth floor of the garage, a man entered as the doors were closing. When plaintiff stepped out of the elevator on the ninth floor, into the glass-enclosed "elevator lobby," the man attacked her. She was assaulted, raped, and robbed.

Plaintiff sued her employer and Craig S. Clark, Director of Loss Prevention for Stix, Baer and Fuller, charging negligence. Defendants filed a motion to dismiss for lack of subject matter jurisdiction. Defendants argued that since plaintiff was attacked while leaving her employer's premises, plaintiff suffered a compensable accident under the Workers' Compensation Law, § 287.120 RSMo 1978, and thus workers' compensation was her exclusive remedy. Defendants asserted that the Labor and Industrial Relations Commission had sole and exclusive jurisdiction over plaintiff's claim, precluding the trial court from exercising any concurrent jurisdiction to decide whether plaintiff's claim was within the commission's sole jurisdiction.

The trial court order dismissing the petition stated:

Motion of defendants to dismiss for lack of subject matter jurisdiction called, heard and sustained. Plaintiff's counsel and defendants' counsel stipulate that the facts and matters recited in paragraph 4 of the aforesaid motion are true. Plaintiff's Fifth Amended Petition against the defendants is dismissed without prejudice.

Paragraph four of defendants' motion to dismiss stated that all parties were operating under the Workers' Compensation Law, that on the date of the incident defendant Associated Dry Goods and its Stix, Baer and Fuller Division were insured for workers' compensation liability, and that defendant Associated Dry Goods had filed written notice with the commission.

Both plaintiff and defendants construe the trial court's order as a determination that only the commission has original and exclusive jurisdiction to determine whether plaintiff was injured by an accident in the course of and out of her employment. The parties agree that the court ruled that once a mixed question of law and fact existed as to whether plaintiff was injured in the course of and out of her employment, the trial court had no choice but to dismiss for lack of subject matter jurisdiction.

The language of the order, however, reflects only the fact that the parties agreed that they were operating under the Workers' Compensation Law. The trial court could have made a determination from the pleadings and plaintiff's deposition that plaintiff was an employee who was injured by an accident in the course of and out of her employment, and thus workers' compensation was her exclusive remedy.

The trial court is not obligated to dismiss a cause of action for lack of subject matter jurisdiction merely because defendant raises the matter of workers' compensation. The Kansas City Court of Appeals, in Sheen v. DiBella, 395 S.W.2d 296, 303 (Mo.App. 1965) suggested in dicta that where there was a dispute over the application of workers' compensation the trial court had no concurrent jurisdiction to make findings determinative of the issues. In Lamar v. Ford Motor Co., 409 S.W.2d 100 (Mo. 1966), however, the language in Sheen was explicitly rejected. Id. at 107. The court refused to apply the primary jurisdiction doctrine to deprive circuit courts of jurisdiction where the defense of workers' compensation is raised. We agree. The trial court was authorized to determine if it had jurisdiction over plaintiff's cause of action.

We treat the trial court's order on the motion to dismiss as a ruling that plaintiff's exclusive remedy was under workers' compensation, since she was an employee injured by an accident in the course of and out of her employment. The motion to dismiss for lack of subject matter jurisdiction is primarily the proper method for raising the exclusivity of workers' compensation. Parmer v. Bean, 636 S.W.2d 691, 695 (Mo.App. 1982). A court should grant a motion to dismiss for lack of subject matter jurisdiction whenever it "appears" that the court lacks such jurisdiction. Rule 55.27(g)(3). As the term "appears" suggests, the quantum of proof is not high. It must appear by the preponderance of the evidence that the court is without jurisdiction. Parmer v. Bean, 636 S.W.2d ...


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