Employees Can Sue Employers in Civil Court for Occupational Disease Claims: Missouri Appeals Court

Missouri’s Western District Court of Appeals recently decided that an employee can sue his employer in civil court for an “occupational disease” claim. The case, KCP & L Greater Missouri Operations Co. v. Cook, involved Monroe Gunter’s claim for damages stemming from a work-related injury. He claimed that he contracted mesothelioma as a result of having been exposed to asbestos during his employment with KCP&L. The court ruled that Gunter was allowed to file suit in civil court because, under Missouri law, the workers’ compensation forum is not the exclusive forum for a claim premised on an “occupational disease,” such as mesothelioma. (Note the distinction between an “occupational disease,” which develops over a period of time, versus an injury that happens instantaneously or acutely as a result of a single accident.)

This is a major change from prior law. Historically, the exclusive remedy for an employee with any employment-related injury – whether acute or gradual in onset – was to pursue a claim in the workers’ compensation forum. This is a system that clearly benefits employers (as well as third-party workers’ compensation insurers).

There are two types of employers in the workers’ compensation context: those who carry insurance policies issued by third-party insurance companies, and those who self-insure – that is, who create and pay into their own private workers’ compensation insurance policies. In every work-injury case, there are three benefits to which an injured employee is presumptively entitled: medical costs, lost wages, and permanent disability.

Two Scenarios

Consider the difference between the likely cost of a workers’ compensation claim versus the possible cost of a civil lawsuit with regard to: (1) a Missouri business with a workers’ compensation insurance policy issued by a third-party insurance carrier; and (2) a Missouri business that self-insures.

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Defense Strategies for Minimizing Plaintiffs’ Damages and Plaintiffs’ Verdicts

The best way for the defendant to keep down the damages is to win on the issue of liability. However, in many cases defense counsel may believe that there is a greater than 50% chance that the plaintiff will win. In some cases, the defendant is clearly at fault, and may be egregiously at fault. In all of these circumstances, a primary goal of defense counsel is to minimize the potential damages that a jury may award to the plaintiff at trial.

In those cases where liability is not clear, part of the strategy of keeping damages down is to present a very good defense on the issue of liability. Even if there is an eventual plaintiff’s verdict, disputed liability will probably keep the damages down. This can be in a direct fashion such as reduction of the verdict based on plaintiff’s comparative fault; or on a jury psychology level. Jurors, who really aren’t sure about defendant’s fault, are less likely to follow the recommendations of plaintiff’s counsel in closing argument to award an amount that is extremely generous to the plaintiff. Doubts about liability can also be a factor in jury room debates, where eventually nine jurors need to agree to the same verdict and the same amount of damages.

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