In Webb v. Coatings Unlimited and K.C.I. Construction, Inc., Debra Webb, Amanda Webb and Stevie Webb, Jr. brought a wrongful death case against Coatings Unlimited, Inc. and K.C.I Construction, Inc. and a few other defendants for Steven Webb, Sr's death due to exposure to MEK and fumes from solvents in an underground chamber at a sanitary lift station in St. Charles, MO. Mrs. Webb also brought a worker's compensation claim against Coatings Unlimited for the death of her husband. Defendants Coatings Unlimited and K.C.I. Construction, Inc. moved for summary judgment and tried to get out of potential liability for wrongful death damages and argued that worker's compensation was the sole remedy for the survivors of Mr. Webb due to the fact that this death was an accident arising out of the course and scope of employment and that the division of worker's compensation was the exclusive remedy for the survivors of Mr. Webb. Plaintiff's argued that in 2005 the Missouri legislature decided to amend the worker's compensation act and changed the definition of the word, "accident" to eliminate any injury occurring due to a "series of repetitive events over time." The legislature had wanted to eliminate occupational diseases such as repetitive trauma events due to carpal tunnel syndrome from the act to make employer's exposure to worker's compensation claims less expensive. By doing so, we argued that the legislature opened the door to allow such an action to be brought in Circuit Court if we could show that the injury and death to Mr. Webb was due to a "series of repetitive breaths over time, causing an occupational disease resulting in death." In this case there is a dispute as to how long Mr. Webb breathed MEK and toxins that caused or contruibuted to his death. However, Plaintiff's expert toxicologist opined that the breathing of MEK and solvents in an underground chamber over two seperate work shifts all combined to contribute to his death by an occpuational disease and that the death was not due to an accident caused by one traumatic event. The defendants argued that Mr. Webb had no MEK or toxins in his system after the first day and that the breathing of these items on one work shift caused his death. Defendants argued that because the death occurred over just a few hours on one day that this was an accident and that the exclusive jurisdiction for the case was in Worker's Compensation.
The Circuit Court ruled that the Defendant's Motion for Summary Judgment was denied and the case is now allowed to proceed in Circuit Court. The Honorable Nancy L. Schneider authored the opinion dated 7/24/15.
Judge Schneider found:
"At the very least, Plaintiffs have created a genuine issue of material fact whether Mr. Webb's death was the result of an accident. Specifically, Plaintiffs have produced sufficient evidence to permit a reasonable juror to conclude that: (1) Mr. Webb's death did not satisfy the "single work shift" requirement of an "accident," and was instead caused by Mr. Webb's exposure to multiple chemicals over two separate work shifts; (2) Mr. Webb's death did not satisfy the "injury" requirement of "accident," and Mr. Webb instead died of an "occupational disease";and 3) Mr. Webb's death did not satisfy the "specific event" requirement of an "accident," and was instead caused by the cumulative impact of repearted exposure to harmful chemicals over three seperate entries-separated by two long breaks totalling approximately 45-55 minutes-into the space in which he died.
Many Plaintiffs want to bring a case in Circuit Court when the injuries are severe or death results due to the fact the the damages can be much broader than the compensation allowed under Missouri Worker's Compensation laws. This remedy is likely to be rare as the Missouri legislature in 2013 passed another worker's compensation law putting occupational diseases and repetitive trauma back into the worker's compensation act in order to attempt to eliminate civil cases against them in similar situations.
Author: Phillip A. Tatlow
