Employee Shot at Work Denied By Insurance, Eighth Circuit

By William Peacock, Esq. on March 19, 2013 | Last updated on March 21, 2019

Some rapscallions were vandalizing and stealing property from Gear Automotive in Kansas City. The police, after investigating, expressed their hunch that the culprits would return, and suggested that someone guard the lot. As many of my fellow-Missourians would do, Robert Gear decided to round up a posse - himself, his brother Darrel, and some armed guy named Joe.

When unidentified individuals did show, the predictable happened, and Joe accidentally shot Robert.

Robert is the sole owner and member of Gear Automotive, LLC. His brother is an employee. Joe was some guy off the street.

In addition to being an automobile salesman, Robert is apparently also quite the crafty litigator. After the insurance company denied the claim, Robert sued Gear Automotive (his corporate alter-ego) and settled the case, contingent on recovery from the insurance company, and stipulating that Robert was not an employee. (The Eighth called this a "sham exercise in derogation of uncontroverted evidence" in a footnote.)

Gear Automotive then sued the insurance company, whose policy, of course, had an employee exclusion provision.

The District Court ignored all of this and sua sponte asked the parties to brief on the applicability of the Missouri Worker's Compensation exclusion. It then decided that the exclusion applied, because Gear Automotive could have purchased worker's comp insurance, and granted summary judgment.

Gear then appealed, arguing that the Worker's Compensation Act does not apply because Gear Automotive has less than five employees. He's probably right - the Eighth Circuit "question[ed] the applicability of the Workers' Compensation exclusion in this case."

He (or at least his company) still lost, however.

The Eighth Circuit instead relied upon the record, and the employee exclusion clause of the policy, to affirm the lower court on different grounds.

The insurance policy was a commercial general liability policy - not a worker's compensation policy. While, per its language, it covers employees' injuries, it only does so when their injury does not arise out of their employment.

So is Robert an employee of Gear Automotive?

He says no - he is a member of the LLC instead.

Unfortunately, per the Eighth Circuit's plain-text reading of Missouri law, the two terms are not mutually exclusive. One can be a member while also serving as an employee - if they handle employee duties.

Darrel Gear is an employee of Gear Automotive. He handles many of the day-to-day operations. Robert, while also having that "member" title, handles the same day-to-day duties. Furthermore, at the time of the injury, both brothers were handling the same security duties as each other.

The other part of the exclusion language requires that the injuries sustained happen while in the course of one's duties. Perhaps had he been walking across the dealership, not on the clock, but on the way to the neighboring bar, and been shot, that would not count under the exclusion. However, the Eighth Circuit felt that the after-hours surveillance duties were part-and-parcel to his duties as an employee, especially since Darrel was nearby.

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