United States District Court, E.D. Missouri, Southeastern Division
ANDREW HALSEY, et al. Plaintiffs,
THE TOWNSEND CORPORATION OF INDIANA d/b/a TOWNSEND TREE SERVICE, et al., Defendants.
MEMORANDUM AND ORDER
STEPHEN N. LIMBAUGH, JR. UNITED STATES DISTRICT JUDGE.
decedent, Tyler Halsey, suffered a fatal heat stroke while
working on a tree trimming crew. The decedent's parents,
plaintiffs Tammy Kennedy and Andrew Halsey, filed this
lawsuit against decedent's employer, Townsend Tree
Service Company, LLC (“Townsend Tree”), and
Townsend Tree's parent company, Townsend Corporation of
Indiana. Townsend Tree has now moved for summary judgment
based on the “election of remedies” doctrine.
to Federal Rule of Civil Procedure 56(c), a district court
may grant a motion for summary judgment if all of the
information before the court demonstrates that “there
is no genuine issue as to material fact and the moving party
is entitled to judgment as a matter of law.” Poller
v. Columbia Broadcasting System, Inc., 368 U.S. 464, 467
(1962). The burden is on the moving party. City of Mt.
Pleasant, Iowa v. Assoc. Elec. Co-op., Inc., 838 F.2d
268, 273 (8th Cir. 1988). After the moving party discharges
this burden, the nonmoving party must do more than show that
there is some doubt as to the facts. Matsushita Elec.
Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 586
(1986). Instead, the nonmoving party bears the burden of
setting forth specific facts showing that there is sufficient
evidence in its favor to allow a jury to return a verdict for
it. Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
249 (1986); Celotex Corp. v. Catrett, 477 U.S. 317,
ruling on a motion for summary judgment, the court must
review the facts in a light most favorable to the party
opposing the motion and give that party the benefit of any
inferences that logically can be drawn from those facts.
Buller v. Buechler, 706 F.2d 844, 846 (8th Cir.
1983). The court is required to resolve all conflicts of
evidence in favor of the nonmoving party. Robert Johnson
Grain Co. v. Chem. Interchange Co., 541 F.2d 207, 210
(8th Cir. 1976).
Missouri's election of remedies doctrine, “an
injured employee who has accepted benefits paid by his
employer in compliance with the workers' compensation
action cannot maintain a tort action against his
employer.” Donner v. Alcoa, Inc., 709 F.3d
694, 698 (8th Cir. 2013) (internal quotation and changes
omitted). Here, it is undisputed that the decedent's
funeral and medical expenses --- totaling more than $20, 000
--- were paid by Townsend Tree. Townsend Tree sent plaintiff
Tammy Kennedy (decedent's mother) a letter standing that
The Townsend Corporation would pay those expenses just five
days after decedent's death.
July 28, 2016 letter from Townsend Corporation to plaintiff
Kennedy stated in relevant part:
Out of respect for your family and to help you through what
we know is a significant financial burden, The Townsend
Corporation would be honored to pay for Tyler's funeral
and burial expenses....
Townsend has not yet determined if your son's death is
compensable under the Missouri Workers Compensation Act and
we will continue our investigation until we have a full
understanding of the facts and circumstances surrounding his
death. If Tyler's death is determined to be a compensable
claim under the Missouri Workers Compensation Act, the
funeral and burial benefit available to Tyler's family
would be limited to $5, 000. As noted above, Townsend will
voluntarily pay the entire amount due to the funeral home,
even if that amount exceeds $5, 000, with reservation of our
right to dispute liability under the Missouri Workers
Compensation Act. However we want to be clear that we will
not seek reimbursement from any member of Tyler's family
or from the funeral home, even if it is later determined that
this is not a compensable claim.
(#31-1.) The letter provided instructions for how to have the
funeral invoices paid and also included the decedent's
last paycheck. Between the funeral expenses and medical
expenses, Townsend paid $23, 337.81. Defendant Townsend Tree
was never reimbursed that money. Townsend Tree thus argues
that plaintiffs “accepted” the workers
compensation benefits and thus Missouri's election of
remedies doctrine bars their tort claims against it.
however, insist that Townsend Tree's payments did not
trigger the election of remedies doctrine. Accepting that
Townsend Tree has paid what would be owed under the Missouri
workers' compensation law, plaintiffs say they did not
know that Townsend intended the payments to be a resolution
of its obligations or that the payments would be the sole
compensation for decedent's death. Townsend relies upon
Neff v. Baiotto Coal Co., 234 S.W.3d 578 (Mo. 1950),
which involved similar facts in which an employee accepted
and retained monthly compensation and medical benefits paid
by his employer. The Missouri Supreme Court held that the
plaintiff's acceptance of those benefits “known by
him to have been paid under the [Workers' Compensation]
Law, for a period of a year, in our opinion, nevertheless
constituted an election precluding the maintenance of the
inconsistent instant action.” Id. at 580.
See also Donner, 709 F.3d at 698 (observing that
“In Neff, it was the receipt of workers'
compensation benefits, not the presence of a final award or
judgment, that triggered application of the election of
Neff acknowledges that the plaintiff there
knew that compensation was paid under the
workers' compensation law. The Missouri Supreme Court
even contrasts the Neff plaintiff with another case
in which an employee accepted payments but “probably
did not understand the effect of the receipts he
signed.” 234 S.W.2d at 308 (discussing Riegel v.
Higgins, D.C, 241 F. 718, 721 (N.D. Cal. 1917)). See
also Knight v. Joines, 819 S.W.2d 79, 81 (Mo. App. 1991)
(“The doctrine of election of remedies requires that a
party electing a remedy be cognizant of his legal rights and
such facts as will enable an intelligent choice at the time
plaintiffs were not advised that allowing the defendant to
pay decedent's funeral and medical expenses would
preclude them from bringing a tort action against defendants.
The letter sent to plaintiff Kennedy merely says that the
company was “voluntarily” paying for the funeral
and that it would reserve its right to dispute liability
under the workers' compensation act. It explicitly stated
that it had not yet determined its liability under the
workers' compensation laws. Plaintiff says that letter
was the only communication she received from defendant.
Defendants argue that is untrue because plaintiff Kennedy was
sent letters on January 16 and 17, 2017, and April 3, 2017,
notifying her that Townsend Tree was treating decedent's
injury and death as being covered by workers'
compensation. But plaintiffs filed their lawsuit against
defendants on November 23, 2016 --- well before either would
have received letters regarding the workers' compensation
activity in January.
Townsend Tree's self-described “voluntary”
payment was not enough to alert the plaintiffs that they were
accepting a workers' compensation payment such that it
precluded them from bringing this lawsuit.
IT IS HEREBY ORDERED that defendant Townsend Tree Service
Company's motion ...