Nathan Blanton v. The Kansas City Southern Railway Company

United States Court of Appeals
For the Eighth Circuit
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No. 21-2345
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Nathan Blanton
Plaintiff - Appellant
v.
The Kansas City Southern Railway Company
Defendant - Appellee
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Appeal from United States District Court
for the Western District of Missouri - Kansas City
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Submitted: January 13, 2022
Filed: May 10, 2022
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Before LOKEN, GRUENDER, and GRASZ, Circuit Judges.
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GRUENDER, Circuit Judge.
Nathan Blanton, a locomotive engineer, sued Kansas City Southern Railway
Company (“KCSR”) for negligence after he sustained injuries in a railcar collision.
The district court1 granted summary judgment to KCSR. We affirm.
1 The Honorable Beth Phillips, Chief Judge, United States District Court for
the Western District of Missouri.

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I.
Nathan Blanton worked as a locomotive engineer for In-Terminal Services
(“ITS”). ITS contracted to provide railcar-switching services for KCSR. The
contract required ITS to carry workers’ compensation insurance. During a shift in
October 2012, a KCSR dispatcher authorized Blanton to occupy a railroad track but
failed to mention that three empty train cars had been left on the track. Unable to
slow down, Blanton’s train collided with the empty train cars, and Blanton was
injured.
Blanton filed a workers’ compensation claim with ITS and received a lump-
sum payment after settling the claim. He then filed a civil negligence action against
KCSR, which does not carry workers’ compensation insurance. KCSR moved for
summary judgment, and the district court granted KCSR’s motion on the ground that
KCSR was exempt from liability under Missouri’s workers’ compensation law.
Blanton appeals.
II.
We review a grant of summary judgment de novo. Avenoso v. Reliance
Standard Life Ins., 19 F.4th 1020, 1024 (8th Cir. 2021). “Summary judgment is
proper only if there is no genuine issue as to any material fact and the moving party
is entitled to judgment as a matter of law.” Id. (internal quotation marks omitted).
Missouri’s workers’ compensation statute imposes liability on employers for
workplace injuries. Mo. Rev. Stat. § 287.120.1. The statute provides the “exclusive
remedy” for such injuries, Mo. All. for Retired Ams. v. Dep’t of Lab. & Indus. Rels.,
277 S.W.3d 670, 679 (Mo. 2009); Mo. Rev. Stat. § 287.120.2 (“The rights and
remedies herein granted to an employee shall exclude all other rights and remedies
. . . , at common law or otherwise . . . .”); so in most cases, the statute shields
employers from civil negligence actions and injured employees must proceed before
the Labor and Industrial Relations Commission (“Commission”), see State ex rel.

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Tri-Cnty. Elec. Co-op. Ass’n v. Dial, 192 S.W.3d 708, 710 (Mo. 2006) (“The
Commission has exclusive jurisdiction in the first instance as to matters covered by
the Workers’ Compensation Act.” (brackets omitted)). As an exception, workers or
their dependents “may elect . . . to bring a[] [civil] action” seeking damages for
personal injury or death against employers who violate the statutory requirement to
carry workers’ compensation insurance or qualify as a self-insurer. Mo. Rev. Stat.
§ 287.280.1; see Mays v. Williams, 494 S.W.2d 289, 291 (Mo. 1973). In such
actions, the statute disallows the common-law defenses of the fellow-servant rule,
assumption of risk, and contributory negligence. Mo. Rev. Stat. § 287.280.1. The
Missouri Supreme Court in Lewis v. Gilmore held that an employee could sue his
immediate employer under section 287.280.1 even if the employee had already
recovered workers’ compensation from an intermediate “statutory employer” (a
contractor that is “deemed an employer” under section 287.040.1). See 366 S.W.3d
522, 524, 526 (Mo. 2012).
Missouri Revised Statutes section 287.040 governs the liability of “statutory
employer[s].” See Shaw v. Mega Indus., Corp., 406 S.W.3d 466, 468-69 (Mo. Ct.
App. 2013). “[A]t least in certain circumstances, a contractor will be deemed to be
the employer of its subcontractors’ employees,” id. at 468, and “shall be liable under
this chapter” to them, Mo. Rev. Stat. § 287.040.1. Statutory employers have
“secondary” liability while immediate employers have “primary” liability, so that
“any compensation paid by those secondarily liable may be recovered from those
primarily liable.” Mo. Rev. Stat § 287.040.3. Section 287.040.3 states that “[n]o
such [secondarily liable] employer shall be liable as in this section provided, if the
employee was insured by his immediate or any intermediate employer.”
Blanton argues that section 287.280.1, the civil-action provision, authorizes
his civil action because KCSR failed to carry workers’ compensation insurance.
KCSR responds that it is not liable because Blanton “was insured by his immediate
. . . employer,” triggering the exemption from liability for statutory employers in
section 287.040.3. According to Blanton, however, section 287.040.3 exempts
KCSR from workers’ compensation liability only, not liability from civil actions.

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“[U]nder Missouri law, ‘the primary rule of statutory interpretation is to give
effect to legislative intent as reflected in the plain language of the statute.’” Emps.
Preferred Ins. v. Hartford Accident & Indem. Co., 913 F.3d 754, 756-57 (8th Cir.
2019) (quoting Akins v. Dir. of Revenue, 303 S.W.3d 563, 565 (Mo. 2010)).
Missouri’s workers’ compensation law must be strictly construed. Mo. Rev. Stat.
§ 287.800.1. “When strictly construing workers’ compensation statutes, [courts]
may not add or subtract words from a statute or ignore the plain meaning of the
words that are there.” Cosby v. Treasurer of State, 579 S.W.3d 202, 207 n.4 (Mo.
2019) (internal quotation marks omitted); see Templemire v. W & M Welding, Inc.,
433 S.W.3d 371, 381 (Mo. 2014) (“[S]trict construction of a statute presumes
nothing that is not expressed.”).
ITS carried workers’ compensation insurance, so there is no dispute that “the
employee was insured by his immediate . . . employer.” See Mo. Rev. Stat.
§ 287.040.3. Consequently, “[n]o [statutory] employer shall be liable as in this
section provided.” Id.
We are not persuaded that the liability “as in [section 287.040] provided,” id.,
is limited to workers’ compensation liability falling within the exclusive purview of
the Commission, see Mo. Rev. Stat. § 287.120 (delineating employers’ liability,
“irrespective of negligence,” for workplace injuries); Atwell v. Fitzsimmons, 452
S.W.3d 670, 677 (Mo. Ct. App. 2014) (listing provisions authorizing administrative
tribunals within the Commission to award workers’ compensation benefits).
Nowhere in section 287.040 does the text differentiate between workers’
compensation liability and civil liability. Instead, the first mention of liability in
section 287.040 is the statement that statutory employers “shall be liable under this
chapter to such contractor, his subcontractors, and their employees, when injured or
killed on or about the premises of the employer while doing work which is in the
usual course of business.” Mo. Rev. Stat. § 287.040.1 (emphasis added). This
language does not discriminate between the different kinds of liability provided in
chapter 287; it includes liability, “irrespective of negligence,” Mo. Rev. Stat.
§ 287.120.1, for benefits that the Commission is authorized to award, e.g., Mo. Rev.

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Stat. §§ 287.170 (temporary total disability benefits), 287.180 (temporary partial
disability benefits), as well as civil liability as authorized by section 287.280.1. If
the legislature intended section 287.040 to reach only the former, we would expect
the immunity to cover liability “as in section 287.120.1 provided,” not liability “as
in this section provided.” See Mo. Rev. Stat. § 287.040.3 (emphasis added).
The only other provision in section 287.040 referencing liability is section
287.040.3, which provides that “the immediate contractor or subcontractor shall be
liable as an employer of the employees of his subcontractors” and categorizes
immediate-employer liability as “primary” and the liability of other employers as
“secondary.” This too does not exclude civil liability as authorized by section
287.280.1.
As the provisions in section 287.040 show, that section does not impose
liability by itself; rather, it confers the status of “employer” to contractors, making
them liable “under this chapter” where they otherwise would not be. Mo. Rev. Stat.
§ 287.040.1; see generally § 287.120.1 (imposing liability on “employer[s]”);
§ 287.280.1 (authorizing civil actions against “employer[s] subject to the provisions
of this chapter” who have not insured their liability); Gray v. FedEx Ground Package
Sys., Inc., 799 F.3d 995, 999-1000 (8th Cir. 2015) (listing the factors for determining
employment status under Missouri law). We accordingly interpret “liable as in this
section provided” to mean “liable as an employer”; that is, liable as a statutory
employer. See Mo. Rev. Stat. § 287.040.3. Blanton concedes that a contractor like
KCSR would not be subject to the civil-action provision but for its status as an
employer, which it possesses solely by virtue of section 287.040. KCSR’s potential
liability, therefore, is liability “as in [section 287.040] provided,” so it enjoys the
immunity from suit. See Mo. Rev. Stat. § 287.040.3.
The only textual evidence Blanton cites in favor of his interpretation is the
civil-action provision itself. True, that provision allows injured employees to “elect
. . . to bring an action” against employers who do not insure their liability, and it
does not qualify that right except by prohibiting certain common-law defenses. Mo.

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Rev. Stat. § 287.280.1. But the provision does not reference section 287.040, and
there is no indication that it was intended to create an exception to the liability
exemption in section 287.040.3. More likely, because the civil-action provision
itself carves out an exception to the rule in section 287.120.2 that workers’
compensation is the “exclusive remedy” for workplace injuries, see Mo. All. for
Retired Ams., 277 S.W.3d at 679, the provision is not intended to override an
immunity provided elsewhere in the statute. Cf. Butler v. Mitchell-Hugeback, Inc.,
895 S.W.2d 15, 19-20 (Mo. 1995) (noting, in the statute of limitations context, that
“[s]tatutory exceptions are strictly construed and are not to be enlarged,” and
rejecting a broad construction of a term that “would, in effect, cause the exception
to consume the statute of limitation and defeat the legislative purpose”).
The requirement to construe strictly the workers’ compensation law does not
compel Blanton’s interpretation. If we strictly construe section 287.280.1 in
isolation, then we must hold that civil negligence actions are always allowed against
statutory employers who fail to insure their liability, as Blanton requests. And if we
strictly construe section 287.040.3, then we must also hold that statutory employers
are always immune from liability when the immediate employer carries insurance.
Fortunately, this seeming contradiction can be averted by applying the principle that
“statutory phrase[s] cannot be read in isolation.” Gash v. Lafayette Cnty., 245
S.W.3d 229, 232 (Mo. 2008). “The provisions of a legislative act are . . . construed
together and read in harmony with the entire act.” Id. (alteration omitted). Here,
harmony is achieved by construing the civil-action provision as an exception to the
exclusive-remedy rule, not as an exception to the immunity for statutory employers.
The different functions of the two provisions reveal that they are, in fact, compatible.
Section 287.280.1 authorizes a procedure for recovery—the civil action—while
section 287.040.3 creates a defense to liability. Understood this way, the provisions
are no longer contradictory; supposing Blanton has a right to initiate suit against
KCSR under section 287.280.1, KCSR has a complete defense under section
287.040.3. See Earth Island Inst. v. Union Elec. Co., 456 S.W.3d 27, 33 (Mo. 2015)
(“When two statutory provisions covering the same subject matter are unambiguous
standing separately but are in conflict when examined together, a reviewing court

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must attempt to harmonize them and give them both effect.”) (internal quotation
marks omitted).
The precedent cited by Blanton is unavailing. In Lewis, the Missouri Supreme
Court upheld a wrongful-death action against a worker’s immediate employer, even
though the plaintiffs had already recovered worker’s compensation from a statutory
employer. See 366 S.W.3d at 525-26. The court reasoned that the “plain language
of section 287.280.1 requires certain employers to carry workers’ compensation
[insurance]” and permits employees or their dependents “to file a civil action against
[any] such employer” that violates this requirement. Id. at 525 (internal quotation
marks omitted). Crucially, in Lewis, the worker’s immediate employer did not carry
insurance, so the immunity for statutory employers in section 287.040.3 was
inapplicable. See id. By contrast, Blanton “was insured by his immediate . . .
employer,” triggering the immunity and necessitating a construction of the statute
that harmonizes both provisions. See Mo. Rev. Stat. § 287.040.3.
Blanton’s other chief authority is more on point. In Harman v. Manheim
Remarketing, Inc., an injured worker brought a civil action against his uninsured
statutory employer after obtaining workers’ compensation from his immediate
employer. See 461 S.W.3d 876, 877-78 (Mo. Ct. App. 2015). The Missouri Court
of Appeals relied on Lewis, holding that the “plain wording of section 287.280.1”
permitted a civil action where the statutory employer failed to carry workers’
compensation insurance. Id. at 884. In denying the employer immunity under
section 287.040.3, the court again invoked the civil-action provision, explaining that
“[t]he strict construction of the express and plain language of [section 287.280.1]
precludes us from presuming or reading into it anything otherwise.” Id. at 883-84.
The court did not offer an interpretation of section 287.040.3, nor did it explain why
the conflict between the two provisions should be resolved in favor of section
287.280.1. See id.
An earlier case from the same court came to the opposite conclusion, however.
In Augur v. Norfolk Southern Railway Co., an injured worker obtained workers’

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compensation from his immediate employer and sued his statutory employer for
negligence. 154 S.W.3d 510, 512, 517 (Mo. Ct. App. 2005). The court agreed with
the statutory employer’s view that “because [the worker]’s immediate employer . . .
carried workers’ compensation insurance . . . , [the worker] cannot bring suit against
. . . [his] remote employer, for the same injuries.” Id. at 517 n.6. The Augur decision
gives effect to the plain meaning of section 287.040.3 and is consistent with our
harmonizing construction of the two provisions. Therefore, we find Augur
persuasive, and we decline to follow Harman’s conflicting holding. See Burger v.
Allied Prop. & Cas. Ins., 822 F.3d 445, 447 (8th Cir. 2016) (“Decisions by the
Missouri Court of Appeals may be used as an indication of how the Missouri
Supreme Court may rule, but we are not bound to follow these decisions.”).
Finally, Blanton characterizes some language in Augur as interpreting the
immunity in section 287.040.3 to apply only to workers’ compensation liability, not
to civil liability in an action under section 287.280.1. He points out that Augur
primarily held that “the trial court lacked jurisdiction,” 154 S.W.3d at 517-18,
because the defendant, a statutory employer under section 287.040.1, was protected
by the statute’s exclusivity shield. Id. Blanton contends that the court’s ensuing
discussion of the immunity in section 287.040.3 “pertained solely to the issue of
whether the defendant would be liable in workers’ compensation,” and had no
bearing on the propriety of the civil action. He specifically highlights the court’s
statement that section 287.040 “deals with the determination of who pays under the
worker’s compensation act” and its conclusion that the defendant was “not liable to
Mr. Augur in workers’ compensation as a remote employer under section
287.040.4,” which has since been renumbered as section 287.040.3, 2005 Mo. Legis.
Serv. S.B. No. 1, sec. A (West). See Augur, 154 S.W.3d at 517 n.6 (emphases
added). Because these statements were responding to and agreeing with the
employer’s argument that, under section 287.040.4, the plaintiff “cannot bring suit,”
and they arose in the context of a civil negligence action that was ultimately barred,
Blanton’s reading is doubtful. See id. at 511, 517 & n.6. But even if Blanton
correctly reads Augur, the comments he cites were made in passing without analysis
by an intermediate court, and they would not disturb our conclusion. See Burger,

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822 F.3d at 447. Because Blanton “was insured by his immediate . . . employer,”
KCSR is not liable and is entitled to judgment as a matter of law. See Mo. Rev. Stat.
§ 287.040.3.2
III.
For the foregoing reasons, we affirm the district court’s grant of summary
judgment to KCSR.
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2 Because we affirm on the ground that the Missouri worker’s compensation
statute exempts KCSR from liability, we do not address KCSR’s argument that
requiring it to carry workers’ compensation insurance would be inconsistent with
the Federal Employers Liability Act.

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