In Brooks vs Laurie WD 85031, 2022 WL 17100583, (Nov. 22, 2022) the court provides a comprehensive review of the statutory employer defense. Under Missouri Workers’ Compensation laws, employers and employees are immune from civil suits brought by their employees. The Statutory Employer defense is found in RSMO §287.40 and is designed to prevent employers from evading the Workers’ Compensation requirements by hiring independent contractors to perform work the employer would otherwise hire ordinary employees to perform. Therefore, if the defendant is sued by an individual employed by a contractor, there needs to be an evaluation as to whether the statutory employer defense is applicable.
A defendant will be deemed the statutory employer of the injured person, and immune from suit if:
- the work is performed under a contract;
- the injury occurs on or about the premises of the purported statutory employer; and
- the work is an operation of the usual business of the statutory employer.
The Courts have held that the contract may be either written or oral. As far as whether the work is an operation of the “usual business” of your insured, the Courts have defined “usual business” to mean those work tasks (1) that are routinely done, (2) on a regular and frequent schedule, (3) contemplated in the agreement between the independent contractor and the statutory employer to be repeated over a relatively short span of time, and (4) the performance of which would require the statutory employer to hire permanent employees absent the agreement.
Whether the defense can be utilized is heavily fact dependent, and the insured bears the burden of proof in respect to each element of the defense. In the Brooks case, the appellate court determined that the trial court’s holding that yearly cutting of trees to facilitate deer hunting at a resort by contractor’s employee was the usual business of the statutory employer and, as such, dismissing the case was in error and reversed the trial decision finding no statutory employer relationship present based on the particular factors surrounding the work.
Brooks is an excellent case to have at your desk to simplify your evaluation of the Statutory employer/employee relationship and the operation of the defense.