Court of Appeals of Missouri, Eastern District, Writ First Division
State of Missouri ex rel. Janet M. Akers, Relator,
The Honorable Katherine M. Hardy-Senkel, Judge of the Circuit Court of the County of Jefferson, 23rd Judicial Circuit, Respondent.
of Prohibition Circuit Court of Jefferson County Cause No.
Colleen Dolan, Presiding Judge
Employers Mutual Insurance Company ("MEM"), brought
claims against Vicki Clifton ("Clifton"), Shelter
Mutual Insurance Company ("Shelter"), and Janet
Akers ("Relator") to recover workers'
compensation benefits in the amount of $4, 107.79; this is
the amount MEM paid to Clifton after she was injured in a
motor vehicle accident with Relator that occurred while
Clifton was acting in the course and scope of her employment.
Shelter, Relator's insurer, negotiated a settlement with
Clifton on Relator's behalf, where Clifton released
Relator from liability in exchange for $8, 672.16 that was
paid directly to Clifton. MEM claims that Shelter (and
thereby Relator), after receiving notice of MEM's
subrogation interest provided by § 287.150, failed to
include MEM in the settlement negotiations and improperly
paid the settlement amount to Clifton instead of
the settlement and Shelter's payment to Clifton, MEM has
been unable to collect from Clifton the amount of
workers' compensation benefits it paid to her. In its
petition, MEM asserted claims of negligence against Relator
(Count I; relating to the actual automobile accident), breach
of fiduciary duty and money had and received against Clifton
(Counts II and III), and fraud against Shelter (Count IV).
Relator filed a motion to dismiss Count I, arguing that
Shelter, acting on her behalf, had settled with Clifton and
obtained a release, and that she was not a proper party to
the subrogation action under MEM's asserted counts, as
MEM only brought a negligence claim against her. The trial
court ("Respondent") denied Relator's motion to
dismiss. Relator filed a petition for a writ of mandamus or
prohibition with our Court, asking that we direct Respondent
to enter an order granting her motion to dismiss, arguing
that she should be dismissed from the action because MEM has
not pleaded an applicable claim against her that would make
her a proper party and upon which relief could be granted.
requested that Respondent file a response and suggestions in
opposition to Relator's petition and suggestions in
support. After MEM failed to file a response on behalf of
Respondent, we issued a preliminary order in prohibition and
directed Respondent to file an answer to Relator's
petition and suggestions in opposition, or a default judgment
would be entered against her. Once again, MEM failed to
respond on Respondent's behalf. Respondent is in default.
After reviewing Relator's petition, exhibits, and
suggestions in support, we find that Count I against Relator
should be dismissed in the underlying case because MEM has
failed to state a cause of action against Relator upon which
relief could be granted under § 287.150. We therefore
direct Respondent to enter an order granting Relator's
motion to dismiss MEM's Count I, and the preliminary
order in prohibition is made permanent.
is a discretionary writ that may be issued to prevent an
abuse of judicial discretion, to avoid irreparable harm to a
party, or to prevent the exercise of extra-jurisdictional
authority." State ex rel. Henley v. Bickel, 285
S.W.3d 327, 330 (Mo. banc 2009). "[P]rohibition will lie
if plaintiff's petition 'does not state a viable
theory of recovery, and relator was entitled to be dismissed
from the suit as a matter of law.'" State ex
rel. Goldsworthy v. Kanatzar, 543 S.W.3d 582, 584-85
(Mo. banc 2018) (quoting State ex rel. Union Elec. Co v.
Dolan, 256 S.W.3d 77, 81 (Mo. banc 2008)). If the
plaintiff's petition is insufficient to justify court
action, "it is fundamentally unjust to force another to
suffer the considerable expense and inconvenience of
litigation in addition to being a waste of judicial resources
and taxpayer money." State ex rel. Church &
Dwight Co., Inc. v. Collins, 543 S.W.3d 22, 26 (Mo. banc
287.150, a workers' compensation statute, governs the
apportionment of proceeds recovered from a liable third-party
tortfeasor who injures an employee, and grants employers the
right of subrogation to recover the amount of workers'
compensation benefits paid or payable to the injured employee
from the amount recouped from the third-party. Missouri
Highway and Trans. Comm'n v. Merritt, 204 S.W.3d
278, 282 (Mo. App. E.D. 2006); § 287.150. Section
287.150 encompasses settlements with a third-party
tortfeasor. Merritt, 204 S.W.3d at 282; Kinney
v. Scheider Nat. Carriers, Inc., 200 S.W.3d 607, 613
(Mo. App. W.D. 2006); O'Hanlon Reports, Inc. v.
Needles, 360 S.W.2d 382, 385 (Mo. App. E.D. 1962).
Courts of this state have held that an employer's right
of subrogation survives an employee's settlement with a
third-party tortfeasor only when the settlement amount is
inadequate to recoup the workers' compensation benefits
paid or payable to the employee or when there is fraud upon
the employer. Kinney, 200 S.W.3d at 613;
O'Hanlon, 360 S.W.2d at 385. To hold otherwise
would allow "double recovery" from the third party,
which would clearly be an incorrect result.
O'Hanlon, 360 S.W.2d at 384 (explaining that
such double recovery is "an evil to be avoided").
underlying case, Count I against Relator should be dismissed
because MEM did not plead that (a) the settlement amount
Shelter, on behalf of Relator, paid to Clifton was inadequate
for MEM to recover the full amount of the workers'
compensation benefits paid to Clifton, or (b) that Relator
somehow committed fraud upon MEM, as MEM asserted against
Shelter. Rather, MEM only brought a claim of negligence
against Relator in its Count I that related to the actual
vehicular collision that injured Clifton; Relator was
released from such a claim when Clifton agreed to the
settlement and accepted the settlement amount. As Clifton has
already recovered her damages resulting from Relator's
negligence in causing the accident, MEM cannot recover
additional amounts from Relator for this same claim under its
subrogation action pursuant to § 287.150. Therefore,
because MEM has not pleaded a claim against Relator asserting
that the settlement amount was inadequate or that she
committed fraud upon MEM, MEM has failed to state a claim
upon which relief can be granted, and Count I against Relator
should be dismissed.
on the foregoing, we find that MEM has failed to state a
claim against Relator in its Count I upon which relief can be
granted. Respondent is therefore directed to enter an order
granting Relator's motion to dismiss Count I of MEM's
petition. The preliminary order in prohibition is made
B. Sullivan, J., Robert M ...