Court of Appeals of Missouri, Western District, Third Division
from the Circuit Court of Jackson County, Missouri The
Honorable J. Dale Youngs, Judge.
Before: Victor C. Howard, Presiding Judge, Cynthia L. Martin,
Judge and Gary D. Witt, Judge.
D. WITT, JUDGE.
Barger ("Barger") appeals the Jackson County
Circuit Court's grant of summary judgment in favor of
Kansas City Power & Light Company
("KCP&L"). Barger argues that the trial court
erred in granting summary judgment in favor of KCP&L
because he was not a statutory employee as provided under
section 287.040.1 and KCP&L was not a statutory
employer. We reverse and remand.
and Procedural History
parent company, Great Plains Energy Services, Inc.
("GPES"), contracted with Projectile Tube Cleaning,
Inc. ("Projectile"), a Pennsylvania company, to
clean condenser tubes. The parties signed a Master Servant
Agreement ("Agreement") which took effect on March
27, 2009. The Agreement set forth the terms and conditions of
all service requests by KCP&L and that each service
request would be defined by a specific purchase order. The
Agreement further stated that Projectile "agrees and
represents that it is an independent contractor and its
personnel are not employees or agents of GPES for federal tax
purposes or any other purpose whatsoever, and are not
entitled to any GPES employee benefits." The Agreement
stated that Projectile was solely responsible for payment of
worker's compensation insurance and claims.
is in the business of generating, transmitting, distributing,
and selling electricity in western Missouri and eastern
Kansas. KCP&L owns and operates a coal fired power plant
in La Cygne, Kansas ("La Cygne Plant"). The La
Cygne Plant produces electrical energy to KCP&L customers
by introducing water into condenser boilers. The condensers
then heat the water in tubes located on the exterior of the
condensers. The water is heated into steam and then
transferred to turbines. These turbines power a generator,
which creates electricity. Cleaning the condenser tubes
involves using high-pressure pumps to shoot a "scraper,
" a bullet-like object, through the thousands of
condenser tubes. Each cleaning of the condenser tubes at the
plant takes approximately four days.
to contracting with Projectile, KCP&L used its own
employees and equipment to clean the condenser tubes at the
La Cygne Plant. At some point, KCP&L made the business
decision to contract with companies like Projectile to
perform condenser tube cleanings at all of their power
plants. The condenser tubes at the La Cygne Plant were
cleaned one to four times per year over the five years
between 2010 and 2014. Barger, an employee of Projectile, had
cleaned the condenser tubes at the La Cygne Plant on
approximately five prior occasions over several years.
March 21, 2013, Barger was cleaning the condenser tubes at
the La Cygne Plant when a grating on the catwalk on which he
was standing fell from under him and he grabbed the grate in
front of him to keep from falling, injuring his right wrist.
20, 2013, Barger filed a Workers' Compensation claim with
the Pennsylvania Bureau of Workers' Compensation, against
Projectile, his employer. On March 12, 2015, Barger filed a
petition for damages in the Circuit Court of Jackson County
against KCP&L, claiming negligence and res ipsa
loquitur in regard to his injury. KCP&L filed an
answer, which included the affirmative defense that Barger
was a statutory employee of KCP&L under the Missouri
Workers' Compensation Law. Chapter 287, RSMo. KCP&L
later moved for summary judgment on the basis that Barger was
a statutory employee of KCP&L, pursuant to section
287.040.1. After full briefing by both parties, the circuit
court granted KCP&L's motion for summary judgment.
This timely appeal followed.
The trial court makes its decision to grant summary judgment
based on the pleadings, record submitted, and the law;
therefore this Court need not defer to the trial court's
determination and reviews the grant of summary judgment
de novo. ITT Commercial Fin. Corp. v.
Mid-America Marine Supply Corp., 854 S.w.2d 371, 376
(Mo. banc 1993); Rule 74.04. In reviewing the decision to
grant summary judgment, this Court applies the same criteria
as the trial court in determining whether summary judgment
was proper. Id. Summary judgment is only proper if
the moving party establishes that there is no genuine issue
as to the material facts and that the movant is entitled to
judgment as a matter of law. Id. The facts contained
in affidavits or otherwise in support of a party's
response to the summary judgment motion." Id.
Only genuine disputes as to material facts preclude summary
judgment. Id. at 378. A material fact in the context
of summary judgment one from which the right to judgment
A defending party … may establish a right to summary
judgment by demonstrating: (1) facts negating any one of the
elements of the non-movant's claim; (2) "that the
non-movant, after adequate period for discovery, has not been
able and will not be able to produce sufficient evidence to
allow the trier of fact to find the existence of any
one" of the elements of the non-movant's claim; or
(3) "that there is no genuine dispute as to the
existence of the facts necessary to support movant's
properly pleaded affirmative defense." Id. at