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Richardson v. Wireless Horizon, Inc.

United States District Court, E.D. Missouri, Eastern Division

February 8, 2017

PENNY RICHARDSON and MARK GARNER, Plaintiffs,
v.
WIRELESS HORIZON, INC., RICHARD HEISLER, TROY HEISLER, ROBERT LINZOAIN, DAIMON RIPPLE, JASON COOPER, and JOSHUA HACKMAN, Defendants.

          MEMORANDUM AND ORDER

          AUDREY G. FLEISSIG, UNITED STATES DISTRICT JUDGE

         This wrongful death case is before the Court on the motion Plaintiffs Penny Richardson and Mark Garner, parents of Decedent Seth Garner, to remand the case to the Missouri state court from which it was removed. Decedent and his co-worker Martin Powers died on March 25, 2014, as a result of injuries sustained when a communications tower they were dismantling in Kansas collapsed. For the reasons stated below, the motion to remand will be granted.

         PROCEDURAL AND FACTUAL BACKGROUND

         For purposes of the motion before the Court, the record establishes the following. At the time of the collapse, Decedent, Powers, and the individual Defendants were employed by Wireless, which was a subcontractor working on behalf of Union Pacific Railroad Company (“Union Pacific”), the owner of a communications tower in Kansas. Wireless was contracted to demolish the tower. The contract was signed by Wireless' president, Defendant Richard Heisler. Defendant Troy Heisler, the safety manager, trained the crews and inspected equipment off-site. Defendant Robert Linzoain was the tower foreman/site supervisor with 20 years' experience. Defendant Daimon Ripple was the winch truck driver at the job worksite. Defendant Jason Cooper, a corporate vice-president and the project manager, was responsible for lining up vendors and delivering equipment and materials to the tower deconstruction site. And Defendant Joshua Hackman was the project administrator for the tower deconstruction project. The crew working at the job site dismantling the tower included Decedent and Powers, both of whom were climbers on the tower; Linzoain, the foreman; and Ripple, the winch operator. As part of the deconstruction process, the workers were disconnecting a ten-foot diameter dish located at an elevation of 240 feet, when a wire rope sling broke, causing the tower to collapse and Decedent and Powers to fall to the ground to their deaths.

         Wireless filed a Report on Injury regarding Decedent with the Missouri Department of Labor and Industrial Relations, Division of Workers' Compensation. (Doc. No. 24-5.) A letter to Wireless from its worker's compensation insurance carrier dated March 25, 2014, regarding the claim related to Decedent, shows Kansas as the “Accident State, ” and Missouri as the worker's compensation “Benefit State.” (Doc. No. 24-4.) And in an Answer to Claim for Compensation received by the Missouri Division of Workers' Compensation on April 18, 2014, related to the claim by Powers, Wireless admitted that with respect to the tower incident, Wireless and Powers “were operating under and subject to the terms and provisions of the Missouri Workers' Compensation Law.” (Doc. No. 24-1.)

         R. Heisler testified by deposition dated June 23, 2016, that all the workers' compensation benefits that applied to Powers and his family were through the Missouri Division of Workers' Compensation. (Doc. No. 24-8 at 4). He further testified that Wireless's employees were paid in Missouri and subject to Missouri employment taxes, and that Wireless assigned its employees to various project sites from Missouri. (Doc. No. 24-8 at 16, 21, 29.)

         Prior Related Lawsuit

          On March 27, 2015, Plaintiffs in this case, both Missouri residents, filed an action in Missouri state court arising out of the incident against Union Pacific, Sabre Industries, Inc., Sabre Communications Corp. (collectively “Sabre”), Wireless, and John Does. The John Does were never served but were identified generally as employees of Wireless and co-employees of Decedent. Sabre was allegedly involved in the design of the tower in question. Plaintiffs asserted claims of negligent supervision, negligent hiring, strict liability, and/or negligent design against the defendants other than Wireless. Against Wireless, Plaintiff asserted one claim: conduct with the specific purpose of injury. Garner v. Union Pac. R.R. Co., 4:15CV00733 AGF (“Garner I”).

         Union Pacific removed the action to this Court on the basis of diversity jurisdiction under 28 U.S.C. § 1332(a). Union Pacific asserted that that the $75, 000 amount in controversy requirement for such jurisdiction was met, as well as the complete diversity requirement, as Plaintiffs and Decedent were citizens of Missouri, and Wireless, the only Missouri defendant, was fraudulently joined. The fraudulent joinder argument was based on the premise that the Court lacked jurisdiction over the sole claim against Wireless because that claim was subject to the exclusive jurisdiction of the Missouri or Kansas Workers' Compensation systems.

         Plaintiffs moved to remand the case and on November 20, 2015, this Court denied the motion to remand. The Court concluded that Plaintiffs' claim against Wireless was precluded under Kansas' Workers' Compensation law, but possibly not under Missouri's. Under Missouri's choice-of-law rules that apply a “most significant relationship test, ” the Court determined, based on the record before it, that the law of Kansas, as the place of injury, governed the case. The Court found that Wireless was fraudulently joined because Plaintiffs' claim against it was precluded by Kansas' Workers' Compensation law. The Court therefore denied Plaintiffs' motion to remand, and dismissed Wireless without prejudice. On February 16, 2016, the Court granted Plaintiffs' motion for voluntary dismissal of the remaining defendants without prejudice, and the case closed.

         The Present Lawsuit

         On March 8, 2016, Plaintiffs filed the present action in Missouri state court.[1] The complaint attempts to state claims for co-employee liability for wrongful death against R. Heisler, T. Heisler, Linzoain, Ripple, Cooper, and Hackmann; and a claim of conduct with the specific purpose of injury against Wireless. All parties except Linzoain are Missouri residents. Linzoain is a resident of Arizona. On April 8, 2016, Linzoain removed this action to this Court on the basis of diversity jurisdiction, averring that all the Missouri Defendants were fraudulently joined. Linzoain argues that there exists no basis in fact or law for the Court to exercise jurisdiction over Plaintiffs' claims for co-employee liability because these tort claims are barred by the exclusivity provision of the Kansas Worker's Compensation Act. Linzoain contends that this Court previously determined that any claims against Wireless relating to the work-related death of Decedent are within the exclusive jurisdiction of the Kansas Workers' Compensation system.

         In support of their motion to remand, Plaintiffs argue that Defendants failed to prove that Plaintiffs' claims against the diversity-destroying Missouri Defendants have no reasonable basis in fact and law. Plaintiffs argue that Missouri choice-of-law principles dictate that Missouri law governs whether Plaintiffs may prevail against Wireless and the co-employee Defendants, as Decedent was a Missouri resident, Decedent's employment was centered in Missouri, a significant part of the tortious conduct leading to Decedent's death occurred in Missouri, Wireless is a Missouri corporation, and the parties fully expected Missouri Workers' Compensation law to apply to claims arising out of the incident at issue. Plaintiffs contend that when making the decision in Garner I, this Court did not have all the evidence showing the significant relationship Defendants had with Missouri, including the Report of Injury filed in Missouri by Wireless, and the admission by Wireless in the Answer to Claim for Compensation with respect to Powers' claim, and by implication, also Decedent's claim arising from the same incident.

         In response, Defendants contend that the doctrine of collateral estoppel precludes Plaintiffs from relitigating the issues decided in Garner I, namely whether Kansas Worker's Compensation law applied, so as to preclude Plaintiff's claims against Wireless, and by implication, the co-employee Defendants.[2] Defendants contend that collateral estoppel applies because the issue decided in Garner I is the same issue presented in this case, namely fraudulent joinder; the prior adjudication resulted in a judgment on the merits of that issue; Plaintiffs, here the parties against whom collateral estoppel is asserted, were Plaintiffs in the earlier suit; and Plaintiffs had a full and fair opportunity to litigate the issue in Garner I. In the alternative, Defendants contend that Kansas law should govern based on several factors showing Kansas has the most significant ...


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