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Accident Fund Insurance Co. v. Casey

Supreme Court of Missouri, En Banc

May 22, 2018

ACCIDENT FUND INSURANCE COMPANY; E.J. CODY COMPANY, INC., Respondents-Appellants,
v.
ROBERT CASEY, EMPLOYEE/ DOLORES MURPHY, Appellant-Respondent.

          APPEAL FROM THE LABOR AND INDUSTRIAL RELATIONS COMMISSION

          MARY R. RUSSELL, JUDGE

         Robert Casey died from mesothelioma caused by repeated exposure to asbestos in the workplace. Before his death, Mr. Casey filed a claim for workers' compensation benefits, with which his widow, Dolores Murphy, proceeded following his death. The Labor and Industrial Relations Commission determined that because Mr. Casey's exposure to asbestos occurred while he was employed by E.J. Cody Company, Inc. ("Employer"), its insurer, Accident Fund National Insurance Company ("Insurer"), was liable to Ms. Murphy for benefits under section 287.200.4, RSMo 2014.[1] All parties appealed.[2] Insurer and Employer argue, among other things, that section 287.200.4 violates article I, section 13 of the Missouri Constitution, which prohibits retrospective laws. Ms. Murphy contends the Commission erred by failing to include Mr. Casey's eight adult children as beneficiaries of the award. For the following reasons, the Commission's decision is affirmed as modified by this opinion to include Mr. Casey's eight children in the final award. Rule 84.14.

         Background

         Mr. Casey spent his career working as a floor tile installer for several different companies. He last worked for Employer, a construction contractor in the business of installing acoustical ceilings and floor tiles. Mr. Casey began in 1984 in a part-time capacity but advanced to full-time employment in 1987. He continued working for Employer until his retirement in 1990.[3]

         In his trade, Mr. Casey worked closely with asbestos-laden materials, primarily vinyl asbestos tile ("VAT"). Employer became aware of the dangers of asbestos in "the mid-1980s" and later discontinued its use of VAT in new projects. Asbestos exposure persisted for Mr. Casey, however, as he was frequently tasked with removing existing VAT when installing new, asbestos-free floor tiles. This practice required cutting, scraping, and sweeping asbestos tiles and cutback, which produced a dust containing asbestos fibers Mr. Casey regularly inhaled. He performed this work without the protection of an asbestos abatement suit or mask.

         Due to his extensive asbestos exposure, Mr. Casey was diagnosed with mesothelioma in the fall of 2014. He filed a claim for workers' compensation benefits against Employer in February 2015. At the time he filed the claim, Employer was covered under an insurance policy purchased from Insurer. The policy included an endorsement titled "Missouri Notification of Additional Mesothelioma Benefits Endorsement, " providing in pertinent part:

Section 287.200.4, subdivision (3), of the Missouri Revised Statutes provides additional benefits in the case of occupational diseases due to toxic exposure that are diagnosed to be mesothelioma and result in permanent total disability or death. Your policy provides insurance for these additional benefits.

         By accepting this policy, Employer opted in to liability coverage for the additional mesothelioma benefits provided by section 287.200.4, which allows for enhanced compensation for "all [mesothelioma] claims filed on or after January 1, 2014."

         Mr. Casey passed away from his mesothelioma while his claim was still pending. An amended claim for compensation was filed thereafter, naming Ms. Murphy and Mr. Casey's eight children as claimants. During a hearing held in front of an administrative law judge ("ALJ"), an oral motion to substitute Ms. Murphy as the claimant was sustained. The ALJ found Employer liable under Missouri's last exposure rule, [4] awarding section 287.200.4's enhanced mesothelioma benefits to Ms. Murphy and Mr. Casey's eight children.

         Employer and Insurer both appealed to the Commission. The Commission largely affirmed the ALJ's decision but did so on alternative grounds, finding the last exposure rule did not apply to claims made under section 287.200.4. It also limited recovery to Ms. Murphy. The Commission determined Ms. Murphy to be the sole proper claimant because the amended claim "did not identify employee's children as dependents or claimants, nor is there any motion on the record before us to include these individuals as parties to any award in this matter." All parties appeal this decision.

         Standard of Review

         This Court reviews the Commission's decision to determine whether it is supported by competent and substantial evidence. Mo. Const. art. V, sec. 18. A decision of the Commission will be disturbed only if (1) the Commission acted without authority or in excess of its authority; (2) the award was procured by fraud; (3) the facts do not support the award; or (4) there was not sufficient, competent evidence to justify the award. Section 287.495.1. Questions of law, including ...


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