IN THE MISSOURI COURT OF APPEALS
WESTERN DISTRICT
JAMES E. EAKER, )
Appellant, )
)
v. ) WD77851
)
KANSAS CITY POWER & LIGHT ) FILED: August 18, 2015
COMPANY, )
Respondent. )
Appeal from the Circuit Court of Jackson County
The Honorable S. Margene Burnett, Judge
Before Division Four: Alok Ahuja, C.J., Joseph M. Ellis, J. and Janet Sutton, Sp. J.
James Eaker alleges that he was injured when he stepped through a gap in a walkway
while repairing the boiler at a power plant owned and operated by Kansas City Power and Light
Company (“KCP&L”).1 At the time of his injury, Eaker was employed by a third-party boiler-
maintenance-and-repair contractor, not by KCP&L. Eaker sued KCP&L for his bodily injuries,
claiming that the company had failed to use ordinary care to remedy or warn of the gap in the
walkway. The circuit court granted summary judgment to KCP&L, finding that it was Eaker’s
statutory employer under § 287.040.1,2 and that Eaker’s exclusive remedy for his injuries was
1
We refer to Kansas City Power & Light Company as “KCP&L” in this opinion for the
sake of brevity, and because the entity has historically been referred to by this acronym. Kansas City
Power & Light Company is a distinct corporate entity from its affiliate, KCP&L Greater Missouri
Operations Company. Eaker initially named KCP&L Greater Missouri Operations Company as an
additional defendant, but voluntarily dismissed it shortly after the petition was filed. KCP&L Greater
Missouri Operations Company is not involved in this appeal.
2
Statutory citations refer to the 2000 edition of the Revised Statutes of Missouri, updated
through the 2013 Cumulative Supplement.
therefore through the worker’s compensation system. Eaker appeals. We conclude that KCP&L
failed to adequately plead the affirmative defense that it was Eaker’s statutory employer, and
therefore that it was entitled to the protections of workers’ compensation exclusivity. We
accordingly reverse, and remand for further proceedings.
Factual Background
Viewed in the light most favorable to Eaker, the facts show that he was injured on the
morning of July 19, 2008, while repairing the boiler at KCP&L’s Hawthorn 5 power plant.
Although he was working on KCP&L’s property, at the time of his injury Eaker was employed
by Enerfab, a boiler-maintenance and -repair contractor.
Prior to the incident in question, KCP&L contracted with Enerfab to service and maintain
the Hawthorn 5 boiler unit. Enerfab employees were on KCP&L property at least four times a
week to perform boiler unit servicing and maintenance.
Eaker’s injury occurred during the emergency repair of a tube leak in the Hawthorn 5
boiler. KCP&L contacted Enerfab about the issue, and Enerfab in turn contacted Eaker’s union.
The union’s hiring hall dispatched Eaker, a union boilermaker, to the plant. Eaker worked at the
plant overnight from July 17 to July 18, then again overnight the following evening until he was
injured at approximately 7:20 a.m. on the morning of July 19, 2008. Eaker’s injury occurred
while he was pulling a light out of the boiler. Eaker stated that, as he pulled the light out, he
stepped back, and his foot fell through a gap in the walkway on which he was standing.
Eaker filed a workers’ compensation claim against Enerfab in March 2010. He filed this
civil action against KCP&L on May 18, 2012.
In its Answer to Eaker’s Petition, KCP&L asserted a series of affirmative defenses.
KCP&L’s thirteenth affirmative defense alleged that,
2
[t]o the extent Plaintiff has received compensation from other persons or
entities involved in this occurrence, including compensation from his employer in
a workers’ compensation claim, Plaintiff’s monetary damages recoverable herein
should be reduced by the amount received from those third parties or by the
amount stipulated in those settlements, whichever is greater.
KCP&L’s sixteenth affirmative defense alleged:
Defendant cannot be held liable for Plaintiff’s alleged accident or
subsequent injuries to the extent Defendant relinquished control of the premises to
Plaintiff’s employer at the time of the accident. Furthermore, Plaintiff has been
fully compensated for the alleged injury through his exclusive remedy, worker’s
compensation.
Eaker filed a Motion to Make More Definite and Certain, or In the Alternative to Strike,
Portions of Defendant’s Answer. The motion challenged, among other things, the particularity
with which KCP&L had pleaded its sixteenth affirmative defense. Eaker argued that KCP&L’s
affirmative defenses, including its sixteenth defense, were “plead as mere conclusory allegations
unsupported by any facts.”
In its opposition to Eaker’s motion for a more definite statement, KCP&L characterized
its sixteenth affirmative defense as follows:
This defense provides the fact that KCP&L relinquished a degree of control to
Plaintiff’s employer. If KCP&L no longer had control over plaintiff, then
KCP&L is no longer liable and Plaintiff’s only remedy is through worker’s
compensation. Again, this affirmative defense is sufficiently pled for Plaintiff to
prepare for trial.
The trial court sustained Eaker’s motion for a more definite statement with respect to
KCP&L’s sixteenth affirmative defense. KCP&L filed an amended answer on December 6,
2012, which revised its sixteenth defense in the following respects:
Defendant cannot be held liable for Plaintiff’s alleged accident or
subsequent injuries to the extent Defendant contracted with Plaintiff’s
employer, Enerfab, to relinquish relinquished control of the premises and
safety of Enerfab’s employees to Enerfab to Plaintiff’s employer at the time of
the accident. Furthermore, Plaintiff has been fully compensated for the alleged
injury through his exclusive remedy, worker’s compensation.
3
The circuit court issued a scheduling order on October 16, 2012. The scheduling order
specified that motions to amend the pleadings be filed no later than April 1, 2013, that
dispositive motions be filed no later than June 24, 2013, and that “[a]ll discovery will be
completed on or before July 31, 2013.” The order also provided that “[t]he above cause is
Specially Set for trial on September 23[,] 2013. This setting is a NO CONTINUANCE setting.”
The circuit court entered an order on July 30, 2013, which granted the parties’ Joint
Motion to Amend Scheduling Order and to Continue Trial Setting. The July 2013 order removed
the case from the trial docket, and granted KCP&L until September 9, 2013 “to file [a]
dispositive motion based upon the statutory employment defense.”
KCP&L filed a motion for summary judgment on September 9, 2013, claiming that Eaker
was its “statutory employee” under § 287.040.1, and thus that Eaker’s exclusive remedy against
KCP&L was under the Workers’ Compensation Law. Eaker’s opposition argued, among other
things, that KCP&L had not properly pled a statutory employment defense in its answer, and that
the defense was therefore waived.
On July 14, 2014, the circuit court granted summary judgment to KCP&L. With respect
to the adequacy of KCP&L’s pleading, the circuit court found that, “[w]hile the affirmative
defense contained in paragraph 16 of the Defendant’s Answer could have been drafted with more
particularity, at the very least, Plaintiff was put on notice that Defendant intended to use the
exclusivity of the Workers’ Compensation [Law] as an affirmative defense.” The court also
reasoned that it was unnecessary for KCP&L to expressly refer to “statutory employment,” since
the basis of KCP&L’s defense “is the exclusivity of the Workers’ Compensation [Law], not that
Plaintiff is a ‘statutory employee.’” Finally, the court observed that, after KCP&L filed its
amended answer, “not only did Plaintiff not object to the affirmative defenses in Defendant’s
4
Amended Answer, but Plaintiff failed to file a subsequent motion regarding Defendant’s
pleadings.” On the merits, the circuit court found that the undisputed facts established that
KCP&L met the criteria specified in § 287.040.1 to be considered a statutory employer, and that
the exception to statutory employment contained in § 287.040.2 was inapplicable.
Eaker appeals.
Analysis
“‘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.’” Ditto, Inc. v. Davis, 457
S.W.3d 1, 8 (Mo. App. W.D. 2014) (quoting Goerlitz v. City of Maryville, 333 S.W.3d 450, 452
(Mo. banc 2011)).
On appeal, Eaker’s asserts three Points Relied On. His Points challenge both the circuit
court’s conclusion that KCP&L had adequately pleaded an affirmative defense based on the
statutory employment doctrine, and the court’s ruling that the undisputed facts established
KCP&L’s right to summary judgment based on the defense. We conclude that reversal is
required based solely on Eaker’s first Point: that KCP&L failed to adequately plead the statutory
employment doctrine as an affirmative defense. Given our disposition, it is unnecessary to
address the merits of the statutory employment defense.
A defendant’s contention that a plaintiff’s exclusive remedy for a personal-injury claim is
through the workers’ compensation system “is not a question that affects the circuit court’s
subject matter jurisdiction”; instead, a claim of workers’ compensation exclusivity “is a matter of
affirmative defense that must be pleaded and proved as provided in Rules 55.08 and 55.27.”
McCracken v. Wal-Mart Stores E., L.P., 298 S.W.3d 473, 479 (Mo. banc 2009); see also
Treaster v. Betts, 324 S.W.3d 487, 490 (Mo. App. W.D. 2010). “For summary judgment to be
5
granted to a defendant on the basis of an affirmative defense, the movant must establish ‘that
there is no genuine dispute as to the existence of each of the facts necessary to support movant’s
properly-pleaded [sic] affirmative defense.” Ditto, Inc., 457 S.W.3d at 14-15 (quoting ITT
Commercial Fin. Corp. v. Mid-Am. Marine Supply Corp., 854 S.W.2d 371, 381 (Mo. banc 1993)
(second emphasis added by Ditto, Inc.).
Supreme Court Rule 55.08 requires that “a party shall set forth all applicable affirmative
defenses and avoidances” in a responsive pleading. Rule 55.08 specifies that the responsive
pleading “shall contain a short and plain statement of the facts showing that the pleader is
entitled to the defense or avoidance.”
To properly plead an affirmative defense as required by Rule 55.08, the party asserting
the defense must allege each ultimate fact necessary to make the defense applicable.
Bare legal assertions are insufficient to plead an affirmative defense. Instead, an
affirmative defense is asserted by the pleading of additional facts not necessary to
support a plaintiff’s case which serve to avoid the defendants’ legal responsibility
even though plaintiffs’ allegations are sustained by the evidence. In other words,
the factual basis for an affirmative defense must be set forth in the same manner
prescribed for pleading claims. A pleading that makes a conclusory statement and
does not plead the specific facts required to support the affirmative defense fails
to adequately raise the alleged affirmative defense, and the alleged affirmative
defense fails as a matter of law.
Ditto, Inc., 457 S.W.3d at 15 (citations and internal quotation marks omitted); see also Peterson
v. Discovery Prop. & Cas. Ins. Co., 460 S.W.3d 393, 410-11 (Mo. App. W.D. 2015).
To determine the adequacy of KCP&L’s pleading, it is first necessary to determine the
factual elements of the affirmative defense that a defendant is entitled to the protections of
workers’ compensation exclusivity, because it is the plaintiff’s statutory employer under
§ 287.040.1. We begin with the language of the statute. Section 287.040.1 provides in relevant
part:
6
Any person who has work done under contract on or about his premises
which is an operation of the usual business which he there carries on shall be
deemed an employer and shall be liable under this chapter to such contractor, his
subcontractors, and their employees, when injured or killed on or about the
premises of the employer while doing work which is in the usual course of his
business.
“The General Assembly adopted section 287.040 to prevent employers from
circumventing the requirements of the Act by hiring independent contractors to perform work the
employer would otherwise perform.” Bass v. National Super Mkts., Inc., 911 S.W.2d 617, 619
(Mo. banc 1995). “As the statute makes clear, statutory employment exists when three elements
coexist: (1) the work is performed pursuant to a contract; (2) the injury occurs on or about the
premises of the alleged statutory employer; and (3) the work is in the usual course of business of
the alleged statutory employer.” Id. at 619-20; see also, e.g., McCracken, 298 S.W.3d at 480;
Brito-Pacheco v. Tina’s Hair Salon, 400 S.W.3d 817, 821-22 (Mo. App. W.D. 2013). KCP&L’s
Brief acknowledges the three essential factual elements necessary to establish that a defendant is
a statutory employer under § 287.040.1: “The statutory employment statute has always required
three things: a contract for work, performance of the work on defendant’s premises, and that the
work is done in the usual course of the defendant’s business.” Respondent’s Br. at 37-38.
KCP&L’s amended answer failed to allege the “three things” which “[t]he statutory
employment statute has always required.” KCP&L’s sixteenth affirmative defense, as amended
following the grant of Eaker’s motion for more definite statement, alleges in full:
Defendant cannot be held liable for Plaintiff’s alleged accident or
subsequent injuries to the extent Defendant contracted with Plaintiff’s employer,
Enerfab, to relinquish control of the premises and safety of Enerfab’s employees
to Enerfab at the time of the accident. Furthermore, Plaintiff has been fully
compensated for the alleged injury through his exclusive remedy, worker’s
compensation.
Considering the allegations of Eaker’s petition and KCP&L’s amended answer, the fact
that Eaker was injured on KCP&L’s property was adequately alleged. But the other two
7
elements necessary to establish statutory employment were not. First, neither Eaker’s petition,
nor KCP&L’s amended answer, allege that Eaker was performing work pursuant to a contract
between KCP&L and Enerfab at the time he was injured. While KCP&L’s answer alleged that it
contracted with Enerfab to relinquish control of its premises, the answer does not allege that the
contract required Enerfab to perform work for KCP&L. A landowner may relinquish control of
its property to another in circumstances having nothing to do with the performance of work for
the landowner (many lease or license agreements for commercial property may be of this
character). Although it may be unlikely, given the nature of the Hawthorn 5 property, that
KCP&L would relinquish control of its property for any reason other than the performance of
work for KCP&L, its answer did not allege that Eaker was performing work under the Enerfab-
KCP&L contract at the time of his injury.
More significantly, the answer fails in any manner to allege that KCP&L’s contract with
Enerfab involved work “which is an operation of the usual business which [KCP&L] . . . carries
on” at Hawthorn 5, or that Eaker was “doing work which is in the usual course of [KCP&L’s]
business” at the time of his injury. § 287.040.1. This is a hotly disputed issue. Eaker contends
that although the KCP&L-Enerfab contract also covered regular boiler servicing and
maintenance, at the time he was injured Eaker was performing specialized, episodic repair work,
which KCP&L would not have hired its own employees to perform. Eaker also argues that his
repair work was not part of KCP&L’s usual business, but was instead only necessary to equip or
facilitate KCP&L’s business (similar to supplying fuel to a manufacturing plant, or delivering
goods to a retailer for resale). Yet, despite the fact that this is a highly contested issue, KCP&L’s
answer alleges no facts to establish that the work Eaker was performing was in the usual course
of KCP&L’s business.
8
The circuit court held that “Plaintiff was put on notice that Defendant intended to use the
exclusivity of the Workers’ Compensation [Law] as an affirmative defense,” and that it was
unnecessary for KCP&L to expressly refer to “statutory employment,” since the basis of its
defense “is the exclusivity of the Workers’ Compensation [Law].” We agree that it was not
necessary for KCP&L’s answer to expressly state the legal conclusion that it qualified as Eaker’s
“statutory employer.” But the bare recitation that KCP&L intended to rely on the exclusive-
remedy provisions of the Workers’ Compensation Law would not be sufficient to assert the
affirmative defense under Rule 55.08. “Bare legal assertions are insufficient to plead an
affirmative defense.” Ditto, Inc., 457 S.W.3d at 15. KCP&L was required to allege the ultimate
facts entitling it to workers’ compensation exclusivity; as explained above, it failed to do so.
In any event, we do not read KCP&L’s sixteenth affirmative defense as asserting that the
company would rely on workers’ compensation exclusivity to defeat Eaker’s claim. The relevant
paragraph alleges that Eaker “has been fully compensated for the alleged injury through his
exclusive remedy, worker’s compensation.” KCP&L’s answer refers to Eaker’s receipt of “full
compensat[ion]” in the past tense. The record does not reflect that any workers’ compensation
claim had been filed against KCP&L – much less resolved – at the time of the filing of KCP&L’s
amended answer. Instead, the relevant statement appears to refer (like KCP&L’s thirteenth
affirmative defense), to Eaker’s receipt of workers’ compensation benefits in a claim against his
direct employer, Enerfab. Eaker filed a workers’ compensation claim against Enerfab in March
2010 (although the record does not reflect when, if at all, that claim was resolved). The
reference in KCP&L’s answer to Eaker’s “exclusive remedy, worker’s compensation,” would
not have put Eaker on notice that KCP&L intended to argue that it was Eaker’s statutory
employer under § 287.040.1.
9
Rather than statutory employment, KCP&L’s sixteenth affirmative defense was plainly
intended to invoke the “independent contractor exception” to a claim of premises liability. As
we recently explained,
“The premises liability theory of negligence provides that a landowner owes an
invitee the duty to use reasonable and ordinary care to prevent injury to the invitee
as the result of a dangerous condition existing on the premises.” “Under the
independent contractor exception to premises liability, if a landowner relinquishes
possession and control of its property to an independent contractor during the
period of work, the duty of care shifts to the independent contractor.”
Key v. Diamond Int’l Trucks, 453 S.W.3d 352, 360 (Mo. App. W.D. 2015) (quoting Cossey v.
Air Sys. Int’l, Inc., 273 S.W.3d 588, 590 (Mo. App. E.D. 2009)). Indeed, KCP&L told the circuit
court that this is what its sixteenth affirmative defense was intended to do: in opposing Eaker’s
motion for more definite statement, KCP&L stated that “[t]his defense provides the fact that
KCP&L relinquished a degree of control to Plaintiff’s employer. If KCP&L no longer had
control over plaintiff, then KCP&L is no longer liable . . . .”3 Given KCP&L’s own statements,
the only reasonable reading of its sixteenth affirmative defense is that it was alleging that
KCP&L had relinquished control of the premises to Enerfab, and therefore that the only
potentially liable party was Enerfab.
The circuit court’s judgment also notes that Eaker failed to object to the affirmative
defenses stated in KCP&L’s amended answer, or to file a second motion for more definite
statement. We are aware of no authority which would require a litigant to file multiple motions
attacking an opponent’s pleadings in these circumstances. Eaker requested that KCP&L plead its
sixteenth affirmative defense with greater particularity, that motion was granted, and KCP&L
provided what further factual allegations it deemed appropriate. As we have explained,
3
Although the quoted sentence continues by stating “and Plaintiff’s only remedy is
through worker’s compensation,” this plainly refers to a worker’s compensation claim against Enerfab,
not a claim against KCP&L.
10
KCP&L’s sixteenth affirmative defense pleaded that it was entitled to rely on the “independent
contractor exception” to a premises liability claim; nothing in its allegations would have alerted
Eaker that KCP&L intended to argue that it was his statutory employer. Eaker was not required
to file a successive challenge to KCP&L’s pleading, requesting that it assert an additional and
different affirmative defense than the one it had chosen to plead (and to re-plead).
Put simply, KCP&L’s sixteenth affirmative defense failed to fulfill “the purpose of Rule
55.08[, which] is to provide notice to the plaintiff so the plaintiff can be prepared” to respond to
the affirmative defenses on which a defendant intends to rely. Mobley v. Baker, 72 S.W.3d 251,
258 (Mo. App. W.D. 2002). Because KCP&L failed to adequately plead that it was Eaker’s
statutory employer, the circuit erred by granting summary judgment on the basis of this
unpleaded affirmative defense, and the grant of summary judgment must be reversed.4
Conclusion
The circuit court’s judgment is reversed, and the case is remanded for further proceedings
consistent with this opinion.
__________________________________
Alok Ahuja, Chief Judge
All concur.
4
We recognize that, on remand, KCP&L could seek leave to amend its answer to allege
that it is Eaker’s statutory employer, and that the circuit court might grant leave to amend, and grant
KCP&L summary judgment on the same basis as before. Given that the deadlines to complete discovery
and seek leave to amend the pleadings have passed, and that KCP&L has already been given one
opportunity to re-plead the relevant affirmative defense, it is not a foregone conclusion that the circuit
court would exercise its discretion to grant KCP&L leave to further amend its answer. In these
circumstances, we do not consider it necessary or appropriate to address the merits of the statutory
employment issue in this opinion.
11