Court of Appeals of Missouri, Western District, Fourth Division
JAMES E. EAKER, Appellant,
KANSAS CITY POWER & LIGHT COMPANY, Respondent
Appeal from the Circuit Court of Jackson County. The Honorable S. Margene Burnett, Judge.
Russell S. Dameron, Kansas City, Mo. for appellant.
Teresa M. Young and Edward W. Zeidler, St. Louis, Mo. for respondent.
Before Division Four: Alok Ahuja, C.J., Joseph M. Ellis, J. and Janet Sutton, Sp. J. All concur.
Alok Ahuja, J.
James Eaker alleges that he was injured when he stepped through a gap in a walkway while repairing the boiler at a power plant owned and operated by Kansas City Power and Light Company (" KCP& L" ). At the time of his injury, Eaker was employed by a third-party boiler-maintenance-and-repair contractor, not by KCP& L. Eaker sued KCP& L for his bodily injuries, claiming that the company had failed to use ordinary care to remedy or warn of the gap in the walkway. The circuit court granted summary judgment to KCP& L, finding that it was Eaker's statutory employer under § 287.040.1, and that Eaker's exclusive remedy for his injuries was therefore through the worker's compensation system. Eaker appeals. We conclude that KCP& L failed to adequately plead the affirmative defense that it was Eaker's statutory employer, and therefore that it was entitled to the protections of workers' compensation exclusivity. We accordingly reverse, and remand for further proceedings.
Viewed in the light most favorable to Eaker, the facts show that he was injured on the morning of July 19, 2008, while repairing the boiler at KCP& L's Hawthorn 5 power plant. Although he was working on KCP& L's property, at the time of his injury Eaker was employed by Enerfab, a boiler-maintenance and -repair contractor.
Prior to the incident in question, KCP& L contracted with Enerfab to service and maintain the Hawthorn 5 boiler unit. Enerfab employees were on KCP& L property at least four times a week to perform boiler unit servicing and maintenance.
Eaker's injury occurred during the emergency repair of a tube leak in the Hawthorn 5 boiler. KCP& L contacted Enerfab about the issue, and Enerfab in turn contacted Eaker's union. The union's hiring hall dispatched Eaker, a union boilermaker, to the plant. Eaker worked at the plant overnight from July 17 to July 18, then again overnight the following evening until he was injured at approximately 7:20 a.m. on the morning of July 19, 2008. Eaker's injury occurred while he was pulling a light out of the boiler. Eaker stated that, as he pulled the light out, he stepped back, and his foot fell through a gap in the walkway on which he was standing.
Eaker filed a workers' compensation claim against Enerfab in March 2010. He filed this civil action against KCP& L on May 18, 2012.
In its Answer to Eaker's Petition, KCP& L asserted a series of affirmative defenses. KCP& L's thirteenth affirmative defense alleged that,
[t]o the extent Plaintiff has received compensation from other persons or entities involved in this occurrence, including compensation from his employer in a
workers' compensation claim, Plaintiff's monetary damages recoverable herein should be reduced by the amount received from those third parties or by the amount stipulated ...