Volume 81

September 2013

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Employer Who Failed To Insure Must Pay Workers Compensation Benefits
And Be Subject To Wrongful Death Action

Workers Compensation

Wrongful-Death Action

Uninsured Employer

Death and Funeral Benefits


Lonnie Lewis was a passenger in the tractor trailer driven by Nathan R. Gilmore. He was killed when the tractor trailer overturned. Gilmore operated the tractor trailer in the course of his employment with Buddy Freeman d/b/a R & F Trucking. In turn, Freeman operated his tractor trailer pursuant to a contract with DOT Transportation, Inc. (DOT). Neither Freeman nor DOT carried workers compensation insurance.

Staci M. Lewis (Lonnie's widow) and McCartney M. E. Lewis filed a claim against Freeman and DOT for workers compensation. They also filed a wrongful death action against Freeman and Gilmore. The circuit court stayed the wrongful death action until the department of labor and industrial relations determined if Lewis' death occurred out of and in the course of his employment.

An Administrative Law Judge (ALJ) entered an award in favor of Lewis' dependents. The ALJ found that Lewis was Freeman's employee but that Freeman did not carry workers compensation insurance as he was legally required to do. The ALJ determined that DOT was Lewis' statutory employer and ordered DOT to pay death and funeral benefits.

DOT intervened in the wrongful death action after the workers compensation award was entered. The circuit court granted summary judgment in favor of Gilmore and Freeman. It found that the wrongful death action was barred because the Lewises elected remedies when they obtained the workers compensation award against DOT.

The Lewises and DOT appealed. The Lewises and DOT asserted that a section of the Missouri workers compensation law allowed the Lewises to proceed in a civil action against Freeman because he did not carry workers compensation insurance, even though the Lewises obtained an award against DOT. Freeman asserted that the election of remedies doctrine provides that "if there are two or more inconsistent remedies available, the election to pursue the one is a bar to any suit based on the other."

The Supreme Court of Missouri noted that the Lewises recovered workers compensation benefits from DOT. They also elected to file a civil suit against Freeman due to his failure to carry workers compensation insurance. It determined that there is no issue of an impermissible double recovery because any recovery by the Lewises in the civil action was subject to DOT's subrogation rights. It also noted that adopting Freeman's argument would require rewriting a section of the Missouri workers compensation law to permit Freeman to avoid the statutory requirement that he carry workers compensation insurance while also evading financial responsibility for his employee's injury. It noted that is simply not the law. The Lewises' civil action against Freeman was not barred by their workers compensation award from DOT.

The appellate court reversed the circuit court's judgment and the case was remanded. One judge dissented.

Supreme Court of Missouri, En Banc. Staci M. Lewis and McCartney M. E. Lewis, a minor, by and through her next friend, Burle Brown, Appellants, DOT Transportation, Inc. Appellant, v. Nathan R. Gilmore and Buddy Freeman, Respondents. No. SC 91834. June 12, 2012. 366 S.W.3d522