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Barger v. Kansas City Power & Light Co.

Court of Appeals of Missouri, Western District, Third Division

April 24, 2018

JAMES BARGER, Appellant,
v.
KANSAS CITY POWER & LIGHT COMPANY, Respondent.

          Appeal 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.

          OPINION

          GARY D. WITT, JUDGE.

         James 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[1] and KCP&L was not a statutory employer. We reverse and remand.

         Facts and Procedural History[2]

         KCP&L's 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.

         KCP&L 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.

         Prior 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.

         On 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.

         On July 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.

         Standard of Review

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[3]. 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 flows. Id.
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 ...

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