Employer Successfully Asserts Constitutional Challenge to Worker’s Compensation Commission Award

MISSOURI — The plaintiffs brought this claim against employer E.J. Cody Company (defendant) alleging her decedent passed from mesothelioma as a result of his occupational exposure to asbestos for which the defendant was liable. Mr. Casey had worked beginning in 1984 as a tile installer for several companies including the defendant. He retired in 1990 and filed suit for mesothelioma in February of 2015. Mr. Casey passed away prior to hearing.

At the commission hearing, the plaintiffs agreed they sought claims under statute 287.200.4 (new statute) which was enacted January 1, 2014. The defendant sought coverage for any liability under the new statute. However, the commission found the defendant to be liable under the “last exposure rule” based on the decedent’s Fall 2014 diagnosis. Accordingly, the commission found the decedent’s spouse and eight children to be eligible for benefits. The defendant appealed.

On appeal the commission upheld the decision with a few modifications of including a liability on the part of the insurer. Although the commission agreed that the insurer couldn’t have “offered a policy covering Employer’s liability under the 2014 Section” and could not have determined a premium, it could have considered “enhanced” risk for the employer going forward with the new statute. However, the commission reversed the decision to add the eight children in the award of over a half million dollars. The parties all appealed.

On the appeal, the court noted on the outset, that the defendants’ appeal “attacked” the new statute itself. In sum, the defendant argued that the legislature had no authority to enact a law to apply to old claims. The court agreed but did not complete its analysis at that juncture. Instead, the court entertained the Commission’s argument that the issue of a constitutional challenge had not been preserved at the hearing. On the contrary, the court stated that not only had the issue been raised but that the commission is not empowered to determine the validity of constitutional challenges. Specifically, the defendant challenged the last exposure rule as violating its constitutional rights to “be free from civil liability based on the insurance they purchased to cover liability as it existed on the last exposure” rather than being forced to have a new law applied retroactively. The court noted that the merits of the appeal were not just colorable but were “real and substantial.” The case has been transferred to the Missouri Supreme Court.

Read the full decision here.

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