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Southerly v. United Fire & Cas. Co.

Court of Appeals of Missouri, Southern District, First Division

October 27, 2014

WILLIAM SOUTHERLY, Appellant,
v.
UNITED FIRE & CASUALTY COMPANY, et al., Respondents

APPEAL FROM THE CIRCUIT COURT OF BUTLER COUNTY. Honorable Michael M. Pritchett, Judge.

For Appellant's: Christopher L. Yarbro.

For Respondent's: John W. Grimm & John C. Steffens.

Before Francis, P.J./C.J., Bates, J., and Scott, J.

OPINION

Page 337

PER CURIAM.

William Southerly obtained personal injury judgments against four co-workers after a workplace accident, then sought to collect from the employer's commercial general liability (CGL) and umbrella insurance policies. A key issue was whether Southerly, a seasonal worker, was a " temporary worker" not subject to the policies' employee exclusions. On cross-motions for summary judgment, the trial court ruled against Southerly. We affirm.

Background

Southerly worked at Cardwell's cotton gin for the four-month ginning seasons in 2007, 2008, and 2009. After suffering a 2009 workplace injury there, he sought and recovered $150,000 from Cardwell's workers' compensation insurer. He also filed a personal injury suit against various co-workers, made 537.065 agreements[1] with them, obtained a $4 million judgment collectable only from Cardwell's CGL and umbrella policies issued by United Fire (Insurer), then sued to equitably garnish Insurer.

Predictably, the policies excluded coverage if Southerly was an " employee." Such exclusions developed alongside workers' compensation law to draw a " sharp line" between liability to employees and to the general public. American Family Mut. Ins. Co. v. Tickle, 99 S.W.3d 25, 29 (Mo.App. 2003). Injured employees get workers' compensation, while CGL insures a company's liability to the public. Id. Employee policy exclusions protect employers who have provided workers' compensation benefits from being twice liable to a worker for the same incident. Gavan v. Bituminous Cas. Corp., 242 S.W.3d 718, 721-22 (Mo. banc 2008).

Gavan, factually similar to this case, is illustrative. From 1996 to 2000, a builder

Page 338

periodically hired Gavan, who got hurt on the job in 2000 and collected workers' compensation. Gavan also sued two co-workers, made a 537.065 agreement with them, took a $2.3 million judgment to be satisfied only from the builder's CGL and umbrella policies, then sued to equitably garnish the insurer, claiming he was a " temporary worker" not subject to employee exclusions. Specifically, the Gavan policies -- as in this case -- defined " employee" to exclude a " temporary worker," i.e., " a person who is furnished to [the policyholder] ... to meet seasonal or short-term workload conditions" (emphasis added).

Gavan lost at trial and in our supreme court, which held, consistent with most other jurisdictions, that " furnished to" plainly and " necessarily implies that a third party has been involved in providing or supplying the worker to the insured." 242 S.W.3d at 721. No third party had furnished Gavan, so he was not a " temporary worker," but an employee subject to employee exclusions that barred his recovery under the policies. Id. at 722. Our supreme court also noted what Tickle earlier had detailed: CGL and workers' compensation policy terms are coordinated with each other and with applicable law so as to cover injured persons under one policy or the other, but not both. Tickle, 99 S.W.3d at 29-30, cited in Gavan, 242 S.W.3d at 721-22.

In the instant case, the trial court considered policy definitions and employee exclusions identical to those in Gavan and reached the same result. Southerly's second point on appeal challenges the finding that he, like Gavan, was an employee and not a temporary worker. We consider that point first.

Point II -- Temporary Worker Coverage

Southerly acknowledges that his " temporary worker" argument for avoiding employee exclusions hinges on whether he was " furnished to" Cardwell, as there is " no dispute that the phrase 'furnished to' requires the involvement of a third party." Mendenhall v. Prop. & Cas. Ins. Co. of Hartford, ...


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