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Leach v. Board of Police Commissioners of Kansas City11/4/2003
Opinion Vote: REVERSED AND REMANDED.
Newton and Holliger, J.J., concur.
Opinion:
Although James Leach was working jointly for two employers as a police officer and a security officer when he was killed, his dependents want to collect their workers' compensation benefits from only one of the employers. They contend that they are entitled to do so because joint employers are jointly and severally liable and because they will lose the full benefit of Leach's pension if they collect their workers' compensation benefits from the Board of Police Commissioners of Kansas City. The Labor and Industrial Relations Commission erred in deciding that the dependents could not make the election. We, therefore, reverse the commission's decision.
Because Westport Security Association was not insured against workers' compensation claims, allowing Leach's dependents to recover from only Westport Security will result in the public's paying the claim through the Second Injury Fund. State Treasurer Nancy Farmer, whose duties include overseeing the fund, asserts that obligating the fund to pay when the Board of Police Commissioners was self-insured and able to pay the claim is contrary to the General Assembly's intention for the fund. This is a central issue in this case.
Leach's children and others not party to this workers' compensation claim sued Westport Security for their damages arising from Leach's death. He died on May 2, 1992, while working as a security officer in Kansas City's Westport district. A car operated by a drunk driver crashed through barricades and hit him. Leach's dependents alleged that Leach's death resulted from Westport Security's negligence. They settled the suit for $25,000. Leach's dependents received Leach's pension and funeral benefit from Kansas City's police retirement system.
Leach's wife, Brenda, filed a claim for workers' compensation, seeking to recover death benefits on behalf of herself and her children. The commission's administrative law judge, Mark Siedlik, decided that Leach was working only for Westport Security when he was killed and, because Westport Security was not insured, the Second Injury Fund was liable. The fund and Westport Security appealed to the commission. They contended that Westport Security and the board jointly employed Leach. The commission agreed and modified the award accordingly. The commission decided that, because the board was self-insured, the fund was not obligated to pay the claim.
Leach's dependents and the board appeal the commission's decision. The dependents contend that section 287.130 entitles them to elect to recover from either Westport Security or the board. The board does not address the issue of whether or not the dependents have a right to elect between employers but argues more generally that the fund is liable when liability is joint and several and one of the employers is uninsured.
Before reaching the issues that the parties raise, we consider whether Leach was a joint employee of Westport Security and the board when he suffered his fatal injuries or was working only for Westport Security. None of the parties raise the issue, but we consider it, sua sponte , because, if the commission's conclusion that Leach was jointly employed is wrong, the issue presented by the dependents and the board is moot.
Control is the pivotal factor in distinguishing between employees and other types of workers. If the employer has a right to control the means and manner of a person's service--as opposed to controlling only the results of that service--the person is an employee rather than an independent contractor. Seaton v. Cabool Lease, Inc., 7 S.W
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