final award allowing compensation · checked by: kjc/pd mr. michel ziade was an employee of first...

I I

Issued by THE LABOR AND INDUSTRIAL RELATIONS COMMISSION

Employee:

Dependents:

Employers:

Insurer:

FINAL AWARD ALLOWING COMPENSATION (Affirming Award and Decision of Administrative Law Judge

with Supplemental Opinion)

Michel Ziade, Deceased

Kristin Ziade, Spouse Talia Ziade, Minor Child

First Class Medical Transportation Quality Business Solutions, Inc.

Guarantee Insurance Company in Liquidation

Injury No. 15-064339

This workers' compensation case is submitted to the Labor and Industrial Relations Commission (Commission) for review as provided by § 287.480 RSMo. Having read the briefs, reviewed the evidence, and considered the whole record, we find that the award of the administrative law judge awarding compensation is supported by competent and substantial evidence and was made in accordance with the Missouri Workers' Compensation Law. Pursuant to § 286.090 RSMo, we affirm the award and decision of the administrative law judge with this supplemental opinion.

Discussion Whether Michel Ziade was an employee of Quality Business Solutions on July 28. 2015, the date of his alleged work-related accident We concur with the administrative law judge's finding that Quality Business Solutions, Inc. (QBS) failed to prove that it terminated the agreement between it and First Class Medical Transportation (FCMT) that made QBS a co-employer of FCMT's employees and responsible for proving workers' compensation coverage for the employees.

We specifically find that the testimony of QBS's former president David Evette that he sent a notice of termination of the agreement in a package of payroll checks to FCMT on July 15, 2015, was not credible. We note that whether or not QBS had good cause to terminate its agreement with FCMT is irrelevant to whether QBS terminated its agreement prior to employee's accident and death on July 28, 2015.

Issues of iudicial estoppel and collateral estoppel We consider the issues QBS raises relating to the equitable doctrines of judicial estoppel and collateral estoppel to be outside of the scope of the Division of Workers' Compensation or Commission's jurisdiction.

The Commission is an administrative agency created by statute and limited in its jurisdiction by the terms of the statute (citations omitted). It is not a court of general jurisdiction .... The quasi-judicial power conferred upon an executive agency is limited to the ascertainment of facts and the application of existing law in order to resolve issues within the given area of agency expertise (citations omitted).

Hunt v. Laclede Gas Co., 869 S.W.2d 770, 773-74.

Injury No. 15-064339 Employee: Michel Ziade, Deceased

-2-

We therefore disavow the administrative law judge's affirmative findings on these issues while preserving them for potential consideration by an appellate court.

Decision We affirm and adopt the award of the administrative law judge as supplemented herein.

The award and decision of Administrative Law Judge Kenneth J. Cain, issued June 26, 2019, is attached and incorporated herein to the extent not inconsistent with this supplemental decision.

The Commission approves and affirms the administrative law judge's allowance of an attorney's fee herein as being fair and reasonable.

Any past due compensation shall bear interest as provided by law.

Given at Jefferson City, State of Missouri, this t?Jfh day of March 2020.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

~~ Robert W. Cornejo, Chairman

Reid K. Forrester, Member

Shalonn K. Curls, Member Attest:

"~ \l~ Secretary

Issued by Division of Workers' Compensation Employee: Michel Ziade

Employee:

Dependents:

Employer:

Insurer:

Employer:

Insurer:

Hearing Date:

Brief Filed:

FINAL AWARD


Kristin Ziade, Spouse Talia Ziade, Minor Child

First Class Medical Trauspotiation

Guarantee Insurance Compauy in Liquidation 1

Quality Business Solutions, Inc.


April 18, 2019

May 20, 20192



'Checked by: KJC/pd

FINDINGS OF FACT AND RULINGS OF LAW

I. Are any benefits awarded herein? Yes.

2. Was the injury or occupational disease compensable under Chapter 287? Yes ..

3. Was there an accident or incident of occupational disease under the Law? Yes,

4. Date of accident or onset of occupational disease: July 28, 2015.

5. State location where accident occurred or occupational disease was contracted: Kansas City, Wyandotte County, Kansas; contract of hire, Lee's Summit, Jackson County, Missouri

1 On January 25, 2017, Christopher Mccurdy entered his appearance as the attorney for Guarantee Insurance

Company. On December 19, 2017, Mr. Mccurdy on behalf of "Quality Business Solutions d/b/a First Class Medical

Transportation and Guarantee Insurance Company" filed a motion to stay the proceedings due to the liquidation.

Prior to the hearing on April 19, 2019, the parties were asked about the stay. Neither stated that the stay remained in

place. Mr. Mccurdy also noted on the record that the legal counsel for the Missouri Division of Workers'

Compensation had advised him on February 15, 2019, that the Missouri Insurance Guaranty Association (MIGA), had

indicated that due to the large deductible in the insurance policy ($250,000), that MIGA would not be able to handle

the claim until 75 percent of the deductible had been met.

2 The dependents filed a brief on May 20, 2019. Neither Quality Business Solutions nor First Class Medical

Transportation filed a brief in the case.

1

Issued by Division of Workers' Compensation Employee: Michel z,iade Injury No. 15-064339

6. Was above employee in employ of above employer at time of alleged accident or occupational disease? Yes.

7. Did employer receive proper notice? Yes.

8. Did accident or occupational disease arise out of and in the course of the employment? Yes.

9. Was claim for compensation filed within time required by Law? Yes.

I 0. Was employer insured by above insurer? Yes

11. Describe work employee was doing and how accident occurred or occupational disease contracted: The deceased employee, who did business development, among his other duties for his employer, First Class Medical Transp01tation, was sent by his employer to deliver gift cards to his employer's clients at the Kansas University Rehabilitation facility. While at the rehab facility, the deceased employee also assisted other employees in loading a large man in a wheelchair into a company van. Immediately, thereafter, a co-employee shot and killed the deceased employee in a dispute over the coemployee's pay.

12. Did accident or occupational disease cause death? Yes. Date of death? July 28, 2015.

13. Pait(s) of body injured by accident or occupational disease: Body as a whole (death).

14. Nature and extent of any permanent disability: Death.

15. Employee's average weekly wages: $1,000.00 per week

16. Weekly compensation rate: $666.67 per week.

17, Method wages computation: By agreement

COMPENSATION PAYABLE

18. Amount ofcompensation payable:

Unpaid medical expenses: None Death benefits: $666.67 per week (See additional findings of fact and rulings of law).

TOTAL: Undetermined.

19. Future requirements awarded: See additional findings of fact and rulings of law.

Said payments to begin as of July 29, 2015 and to be payable and be subject to modification and review as provided by law.

The compensation awarded to the Claimant shall be subject to a lien in the amount of25 percent of all payments hereunder in favor of the following attorney for necessary legal services rendered to the Claimant: Mr. Thomas Stein.

2

Issued by Division of Workers' Compensation Employee: Michel Ziade Injury No. 15-064339

FINDINGS OF FACT and RULINGS OF LAW

Employee:

Dependents:

Employer:

Insurer:

Employer:

Insurer:

Hearing Date:


Kristin Ziade, Spouse Talia Ziade, Child

First Class Medical Transportation


Quality Business Solutions, Inc.


April 18, 2019


Checked by: KJC/pd

Mr. Michel Ziade was an employee of First Class Medical Transportation (FCMT) on July 28, 2015. On January 8, 2015, FCMT had entered into a Client Services Agreement with Quality Business Solutions, Inc. (QBS) making QBS a joint employer. QBS per the te1ms of the agreement was responsible for providing workers' compensation insurance coverage for FCMT's employees.

On July 28, 2015, Willie Parker, an employee ofFCMT, murdered Michel. The Client Services Agreement between FCMT and QBS entered into on January 8, 2015 had a one-year term.

QBS, however, argued that it had terminated the agreement prior to July 28, 2015, the date of Michel's murder.

Michel was survived by his widow, Ms. Kristin Ziade, (hereinafter referred to as Claimant),

date ofbitih July 1, 1972, and his dependent daughter, Talia Ziade, date ofbitih November 11, 2009. Prior to the hearing, Claimant and QBS entered into various admissions and stipulations. The remaining issues were as follows:

1. Whether Michel Ziade was an employee of QBS on July 28, 2015; 2. Whether Mr. Ziade sustained an accident arising out of and in the course and scope of

his alleged employment with QBS on July 28, 2015; 3. Whether Claimant remanied after Mr. Ziade' s death;

4. Liability of the alleged employer, QBS, for death benefits to the widow and minor child;

5. Whether judicial estoppel is appropriate in the case; 6. Whether collateral estoppel is appropriate in the case; and

7. Liability of QBS for the $5,000 burial allowance as provided in the statute.

3


At the hearing, Claimant testified that she was the widow of Michel Ziade. She testified that she had not remanied after Michel's death. She stated that one child, Talia Ziade, was born of her maniage to Michel.

Claimant testified that she now owned Express Medical Associates, which provided

wheelchair and stretcher transportation services. She stated that she changed the company's name to Express Medical Associates from FCMT after Michel's death due to the bad publicity associated with its original name.

Claimant testified that she started FCMT in 2010. She stated that she was the president and 100 percent owner of the company. She stated that Michel worked for FCMT. She stated that she did not !mow if Michel was a corporate officer.

Claimant testified that FCMT had 20 employees in July 2015. She identified as Exhibit C the Client Services Agreement between FCMT and QBS, making QBS a co-employer ofFCMT's

employees. She stated that she entered into the agreement because it was a workers' compensation policy. She stated that Michel handled the negotiations and asked her to sign it. She indicated that she had no conversations with QBS about the Client Services Agreement, either before or after Michel's death.

Claimant testified that one of Michel's duties was business development. She stated that Michel was murdered on Tuesday, July 28, 2015, at 12:03 p.m. She stated that she sent him on that day to the KU Rehabilitation Center to do business development. She stated that he was going to give out gift cards to their clients in the facility.

Claimant testified that Michel also did the payroll for the company. She stated that on pay weeks Michel would enter the payroll on Tuesday or Wednesday mornings. She stated that the payroll had to be wired from her company to QBS. She stated that Michel would have wired the payroll records to QBS on Wednesday July 29, 2015. She stated that QBS would have then processed the payroll checks out of her company's account with QBS.

Claimant testified that due to Michel's death, FCMT did not transfer money to QBS for the payroll. She denied that QBS had terminated the Client Services Agreement prior to Michel's death on July 28, 2015. She argued that the only te1mination of the Client Services Agreement letter or

notice she received from QBS was in an envelope post marked August 13, 2015. She denied that she received any other envelopes or packages from QBS. She identified Exhibit 6 as the tem1ination letter.

Claimant testified that the termination letter from QBS in the envelope post marked August 13, 2015 was undated and that it was not addressed to her or to any individual or employee of FCMT. She stated that if a termination letter had been sent to FCMT prior to August 13, 2015, it

4


would have been brought to her attention. She also stated that she had no conversations with QBS about the contract being tetminated prior to Michel's death on July 28, 2015.

Claimant testified that she was incapacitated after her husband's death and that Sammy Ayyad, her fotmer accountant, ran the business, along with some help from Mike Ferguson, who she later terminated. She stated that she personally did not have any conversations with anyone at

QBS about a reinstatement of the contract. She stated that she knew nothing about a no loss letter

and that she was not aware that Mr. Ferguson had signed a no loss affidavit with QBS on August 15, 2015.

Finally, Claimant testified that she had a relationship with Adel Azzeh after her husband's death, but did not marry him. 3 On cross-examination, she stated that there was no marriage license. She stated that there was no marriage ceremony.

Claimant also admitted on cross-examination that the Client Services Agreement provided that all ofFCMT's employees were to be paid through QBS. She stated that she now knew that Willie Parker was not on the roster of employees provided to QBS. She stated that she did not know if FCMT breached the Client Services Agreement.

Claimant admitted that Michel had made a $1,500 loan to Willie Parker 1-½ weeks before Willie murdered him. She stated that she did not know the terms of the loan. She admitted that she pursued a wrongful death action on her daughter's behalf due to Michel's murder. She stated that she was not aware of what her lawyers were doing in the wrongful death action.

Detective James Sutton with the Kansas City, Kansas Police Depatiment testified at the heat-ing for Claimant. Detective Sutton testified that he had worked for the depatiment for 3 0 years, of which 20 years were as a detective. He stated that he had worked in the Homicide Division since 2013.

Detective Sutton testified that he an·ested Willie Parker on August 6th or 7th, 2015. He stated that Willie confessed to murdering Michel over a dispute involving Willie's pay. He stated that Willie indicated that he was upset.because the night before the murder, FCMT sent him to a hospital to pick up a patient and FCMT refused to pay him for the extended time he spent waiting for the patient.

On cross-examination, Detective Sutton testified that he did not believe that the loan Michel made to Willie was a "big" part of the case. He reiterated that Willie told him that the dispute was

over pay for picking up the patient the night before the murder. Detective Sutton acknowledged that Willie indicated that he hated white people. He acknowledged that Willie stated that he hated

3 Claimant lived in Lee's Summit, Missouri.

5


Michel who had a nice car and house, but refused to properly compensate him for the work he did for the company.

Claimant also called Mr. David Evette as a witness in the case. Mr. Evette testified that he had been the president of QBS for 2 months. He stated that his wife, Pamela Evette, was the president prior to him assuming the office. He stated that his wife was now the Lieutenant

Governor of the State of South Carolina. He stated that he was the chief operating officer for the company for 19 years before -he became president.

Mr. Evette testified that there was a written contract between QBS and FCMT setting out the terms of the relationship between the two companies. He stated that under the terms of the contract his company had to provide a notice of termination of the contact to terminate it. He acknowledged that the contract provided that the notice of termination of the contract had to be sent to Pamela Evette at QBS and Kristin Ziade (Claimant) at FCMT.

Mr. Evette then conceded that for a notice of termination of the contract by QBS to be effective, the notice had to be sent to Claimant. He stated that QBS sent a termination notice to FCMT on two separate occasions. He stated that he placed the first notice of termination of the contract in a Fed Ex package with FCMT's payroll checks on July 15, 2015. He admitted that the alleged July 2015 notice of termination of the contract was not dated nor addressed to Claimant. He stated that it was addressed as "To whom it may concern." He admitted that the contract provided that all notices had to be sent to Claimant as the president of FCMT.

Mr. Evette also admitted that the notice of termination of the contract in the envelope postmarked August 13, 2015 was addressed as, "To whom it may concern" instead ofto Claimant. He acknowledged that the Fed Ex receipt for the July 15, 2015 paycheck package did not show any

receipt for a package sent to Claimant. He acknowledged that the receipt was only for a package sent to FCMT.

On examination by his attorney, Mr. Evette testified that the July 15, 2015 Fed Ex package contained the paychecks for both Claimant and Michel. He stated that he put the notice of termination of the contract in the package with the July 15, 2015 paychecks. He stated that he terminated the contract because FCMT was paying people outside of the contract with QBS in violation of the contract.

Mindy Laverne Willis, an employee of Express Medical Transportation, testified for

Claimant. She stated that in July 2015 she worked as an assistant for FCMT. She stated that her job duties were to answer the phone, enter payroll and tell drivers where to go. She stated that employees were paid twice per month by checks issued by QBS. She stated that she entered the payroll information on July 14, 2015.

6


Ms. Willis testified that Michel made a bank deposit on Wednesday July 15, 2015 to cover the checks issued by QBS for the Friday July 17, 2015 payday. She stated that Wednesday July 29, 2015 was the next time Michel was scheduled to make the bank deposit for the Friday July 31, 2015

payday. She stated that due to Michel's death on Tuesday July 28, 2015, the bank deposit and wire transfer to QBS were not made on July 29, 2015. She stated that FCMT at the direction of Mike Ferguson, the acting manager, issued its own checks for the Friday July 31, 2015 payday.

Ms. Willis testified that after Michel's death, the next Tuesday for the payroll cycle was August 11, 2015. She stated that Michel would have made the bank deposit on August 12th and that the employees would have been paid on Friday August 14°1

• She stated that after Michel's death

and prior to August 11, 2015 she had a discussion with Josh Irick at QBS about the payroll. She stated that Josh indicated that QBS was no longer going to be the payroll company. She stated that Josh indicated that QBS needed loss information from FCMT about vehicular accidents. She stated that he indicated that once QBS received the loss information "everything" would be reinstated and QBS would do the payroll.

Ms. Willis testified that prior to Michel's death on July 28, 2015 Josh never told her that QBS would no longer be the payroll company for FCMT. She then identified an email she sent to Josh on or about August 13, 2015. She stated that she asked Josh in the email whether he had heard anything about continuing FCMT's contract with QBS. She reiterated that neither Josh nor anyone at QBS had told her that QBS had cancelled the contract prior to Michel's death. She stated that she found out that the contract was cancelled after Michel's death.

QBS offered the testimony of several witnesses at the hearing. Mr. Jeffrey Rendel, the owner of an insurance agency in Florida, testified that he did business with fifty-one Professional Employers Organizations or PEOs or co-employment agreements. He stated that he had worked

with PEOs for 26 years.

Mr. Rendel testified that under the Client Services Agreement, QBS became a co-employer

of its clients' employees. He stated that the clients were obligated to run their employees "through" QBS and that, in return, QBS had to purchase workers' compensation insurance coverage for the employees. He stated that QBS had a $250,000 deductible in the workers' compensation

insurance policy it purchased to cover FCMT' s employees.

Mr. Rendel testified that it takes three weeks to process an endorsement. He stated that the

tennination of the contract with FCMT was July 14, 2015. He stated that the endorsement was

processed on August 17, 2015.4

4 August 17, 2015 was nearly five weeks after the contract was allegedly terminated on July 14, 2015.

7


Mr. Adel Azzeh testified for QBS. He stated that he was good friends with Michel. He stated that he !mew Claimant through Michel. He also stated that he and Claimant were married after Michel's death. He stated that he moved into Claimant's house.

Mr. Azzeh stated that he was Muslim and that he manied Claimant in an Islamic "manner"

in a ceremony at Claimant's house. He stated that he gave Claimant a wedding ring. He stated that he lived with Claimant until April 2018 when the maniage ended.

On cross-examination, Mr. Azzeh admitted that a State of Missouri maniage license was never issued for his alleged maniage to Claimant. He admitted that they never applied for a matTiage license. He admitted that they did not appear before a State or County official to be

matTied. He stated that although they signed a prenuptial agreement, he did not have a copy of it ' with him. He also admitted that he had no documents stating that he and Claimant were manied.

He stated that he did have text messages from Claimant and her father acknowledging the maniage, but he did not bring the text messages with him to the hearing.

Mr. Evette also testified as part of QBS' case in chief. He stated that QBS handled workers'

compensation and payrolls for companies. He stated that his company had been in the PEO business for 28 years.

l'vfr. Evette testified that employees of the onsite employer, FCMT in this case were also employees of QBS for tax purposes, payrolls and workers' compensation. He stated that the client paid QBS a fee for the services QBS provided for the client. He stated that QBS based the fees chai·ged on wages and a percentage of the gross payroll.

Mr. Evette stated that QBS paid the taxes. He stated that it remitted the taxes paid by the

onsite employer to the government. He stated that the onsite company is required to have a workers' compensation insurance policy, which covers all employees not turned over to QBS. 5

Mr. Evette identified the Client Services Agreement between his company and FCMT. He stated that one of the paragraphs in the agreement required the client to be truthful and accurate in its disclosure of the information provided to QBS. He stated that it was a breach of the contract making it subject to innnediate termination, if the client was not truthful and accurate in its disclosure of infonnation.

Mr. Evette testified that the contract provided that all wages paid by the onsite employer had to be paid through QBS. He stated that he became aware that FCMT was paying some employees

outside of its contract with QBS. He stated that QBS terminated the contract with FCMT for that reason.

5 Mr. Evette admitted that FCMT listed Michel as one of its employees.

8


Mr. Evette testified that Ron Hodge, a broker, brought FCMT's business to QBS. He stated that he initially contacted the broker when he learned that FCMT was paying employees outside of

the contract with QBS. He stated that Mr. Hodge reported back to him that he had provided the

information about paying employees outside of the contract to FCMT.

Mr. Evette reiterated that he placed the termination of the contract letter in the Fed Ex

package with the payroll checks sent to FCMT on July 15, 2015. He stated that the contract was terminated effective with July 14, 2015. He denied that he terminated the contract upon learning of

Michel's death on July 28, 2015. He stated that other employees of QBS had been killed and he did

not terminate the contract.

Mr. Evette testified that his company offered to process the payroll for FCMT after it was advised that Michel was dead but not to take FCMT on as a client. He acknowledged that he understood that Claimant was "very" distraught and that he was told that she was locked in her bedroom. He stated that FCMT asked QBS to reinstate the contract and QBS considered it.

Mr. Evette testified that a no loss letter was required anytime a lapse in coverage had occurred. He stated that FCMT' s no loss letter was dated August 21, 2015. He stated that although he knew of Michel's death by that date, he did not know that a workers' compensation claim was being pursued. He stated that QBS would not have requested a no loss letter if he had known that

Michel's death was being alleged as a work-related accident.

Mr. Evette stated that QBS was going to reinstate the contract with FCMT on August 21, 2015, until it learned on that date that Claimant was pursuing a workers' compensation case due to the death of Michel. He also stated that subsequent to Michel's death, FCMT asked QBS to retroactively increase Michel's salary and to add Willie Parker to the payroll dating back to January

2015.

Claimant's Other Evidence

Claimant offered into evidence the depositions of two fact witnesses as well as a telephone deposition of Mr. Evette. Mr. Ben Orlando Davis testified that he was a supervisor wheelchair driver for FCMT. He stated that on July 28, 2015 he and Willie Parker drove to the KU Rehabilitation Center to pick up a van. He stated that when they arrived at the rehab center, he observed Michel and another driver trying to load a large main in a wheelchair into one ofFCMT's

vans.

Mr. Davis testified that Willie helped load the man into the van. He stated that afterwards

Willie began complaining about his work hours. He stated that Willie was upset because FCMT was calling him all hours of the night and not providing him with the information needed to do the

job. He stated that Willie also complained that when he called FCMT back to get the necessary

information, no one would answer the phone.

9


Mr. Davis testified that he was in the rehab center preparing to pick np a patient when he

heard the gunshots. He stated that he did not see the shooting, but he saw Willie pick up a duffel bag and walk down an alley.

Stanley Earl Burleson, another driver for FCMT, testified that he was at the KU Rehabilitation Center on July 28, 2015. He stated that Mr. Davis and Willie helped him push the man in the wheelchair into the van. He stated that Michel was supervising the job on that day.

He stated that after getting the man into the van, Michel and Willie got into an argument.

He stated that Willie began hitting Michel. He stated that afterwards Michel and Willie walked away in opposite directions. He stated that he was driving away when he heard the gunshots. He

stated that he was not paying attention to what Michel and Willie were arguing about.

On cross-examination, Mr. Burleson testified that he got in between Michel and Willie to break the fight up. He stated that he was not aware of Willie being upset with Michel or the

company. He stated that he had no knowledge of any loans or payments outside of work.

Claimant also offered into evidence a telephone deposition of Mr. Evette. The testimony was cumulative of Mr. Evette's testimony at the hearing.

QBS' Other Evidence

QBS offered into evidence the deposition testimony of Michael T. Ferguson and Sammy Ayyad, taken for both Claimant's Missouri and Kansas workers' compensation cases. Mr. Ferguson testified on direct examination that he was now "mostly" retired. He stated that he was still working a few hours as a driver for Smithville Living Center. He stated that he previously worked for FCMT as a driver. He stated that he made several trips with Willie Parker who complained about being called out in the middle of the night to do jobs.

Mr. Ferguson testified that FCMT put him in charge after Michel's death because he was the only one "smart" enough to do the job. He stated that while in charge, he mainly answered the phones, dispatched drivers, ordered supplies and hired job applicants. He stated that Claimant did the payroll.

Mr. Ferguson testified that he spoke with QBS on the phone two or three times about "trying to get the payroll company back and they didn't want to do it." He stated that QBS did one payroll after Michel's death but did not want to do any others.

10


Mr. Ferguson testified that he quit his job at FCMT over some disputes with Claimant.6 He

stated that he had never seen a notice of termination of the contract with QBS. He stated that he

assumed that the no loss letter pe1iained to any wrecks or injuries to employees.

Finally, Mr. Ferguson stated that he "believed" that it was a few weeks after Michel's death

when he was advised that he needed to get the payroll reinstated.

Mr. Ayyad testified that he did FCMT's tax preparation work. He stated that he was not an

accountant. His testimony primarily involved Claimant's business practices.

Other Exhibits

Claimant and QBS offered some of the same exhibits. Both offered the Client Services

Agreement between FCMT and QBS. The pertinent sections are set out in detail later in the award.

The purported August 13, 2015 termination notice provided that: "QBS Inc. now terminates

the relationship with First Class Medical Transp01iation back to the last payroll which was pay

period end date July 14, 2015." The letter was addressed "To whom it may concern" and not to

Claimant, Kristin Ziade.

QBS offered into evidence as Exhibit A what it argued was the wedding photograph of

Claimant and Mr. Azzeh. It also offered into evidence the March 2, 2017 deposition testimony of

Claimant in a declaratory judgment action filed by American Service Insurance Company, the

liability insurer for FCMT. Claimant's daughter had argued that FCMT was liable for the wrongful death of her father.

In the deposition, Claimant testified that Mr. Azzeh was a friend of her husband's and that

he had lived with her in her home for one year. Mr. Azzeh attended the deposition with Claimant.

On questioning by the attorney for American Service Insurance Company, Claimant testified that

she asked Michel to go to the KU Rehabilitation Center on July 28, 2015 to deliver a gift card. She

stated that Willie Parker was at the rehabilitation center due to his work for FCMT.

On questioning by Claimant's daughter's attorney, Claimant testified that after July 28,

2015, QBS sent a letter to FCMTadvising that it had cancelled the Client Services Agreement

because FCMT had paid its employees directly. She also stated that Josh, the vice president at

QBS, had contacted FCMT on July 29, 2015 and asked where was the wire transfer for the payroll.

In addition, Claimant testified that Mindy had already sent the August 2015 payroll to QBS

when Josh called Mindy and told her that QBS was cancelling the contract. The August payroll

checks were to be distributed on August 14, 2015. She stated that she received the letter from QBS

6 Claimant testified that she fired Mr. Ferguson.

11


terminating the agreement by certified mail on August 14, 2015. She stated that QBS "backdated" the letter to show that it had te1minated the contract on July 13th or 141h, 2015.

Law

After considering all the evidence, including the testimony at the hearing, the numerous

depositions, the other exhibits, and after observing the appearances and demeanor of Claimant and the other witnesses at the hearing, I find that QBS failed to prove that it had terminated the Client

Services Agreement between it and FCMT prior to July 28, 2015. The Client Services Agreement made QBS a co-employer ofFCMT's employees and responsible for providing workers' compensation insurance coverage for the employees.

I find that Claimant met her burden of proving that Michel's accident on July 28, 2015 arose out of and in the course and scope of his employment and resulted in his death. I also find that Michel was survived by two dependents: Claimant, his widow, and Talia Ziade, his minor daughter. I find that Claimant had not remaiTied after Michel's death. Thus, QBS is ordered to pay death benefits to Claimant and Talia and the burial allowance as set out in the award.

Burden of Proof

As noted above, QBS had the burden of proof on its affirmative defense that it had tem1inated the Client Services Agreement between it and FCMT prior to Michel's alleged work-related accident and death on July 28, 2015. See§ 287.808 RSMo. 2005 and Court cases setting out that the employer has the burden of proof on affirmative defenses. Aramark v. Faulkner, 408 S.W.3d 271 (Mo. App. E.D. 2013); Pursifull v. Braun Plastering & Drywall, 233 S.W.3rd 219 (Mo. App. W.D. 2007); Soos v. Mallincrodt, Chemical Co., 19 S.W.3rd 683 (Mo. App. E.D. 2000); and Klopstein v. Schroll House Moving Co.,425 S.W. 3d 498 (Mo. App. 1998). QBS did not meet its burden of proof.

Similarly, Claimant had the burden of proving all material elements of her claim for death · benefits as the widow and as the mother and natural guardian of Michel's only child. See Fischer v.

Arch Diocese of St. Louis - Cardinal Richter Inst., 703 SW 2nd 196 (Mo .App. E.D. 1990); overruled on other grounds by Hampton vs. Big Boy Steel Erections, 121 SW 3'd 220 (Mo. Banc 2003); Griggs v. A.B. Chance Company. 503 S.W. 2d 697 (Mo. App. W.D. 1973); Hall v. Country Kitchen Restaurant, 935 S.W. 2d 917 (Mo. App. S.D. 1997); overruled on other grounds by Hampton. Claimant met her burden of proof.

Whether Michel Ziade Was an Employee of QBS on July 28, 2015, the Date of His Alleged Work-Related Accident

QBS, a Professional Employer Orga11ization (PEO), entered into a Client Services Agreement with FCMT, Michel's onsite employer, on January 8, 2015, which made QBS a coemployer ofFCMT's employees. The contract provided in paragraph 1 as foliows:

12


I. Term. This Agreement shall commence on the date first written above,

(January 8, 2015) ... and remain in full force, unless terminated as provided in

paragraph 6. The agreement shall automatically renew annually for one year on the

same terms and conditions unless otherwise agreed to by the parties ... unless this

Agreement shall be sooner terminated pursuant to the terms "hereof'. . . Either

paity may terminate this Agreement upon thi1ty days advance written notice to the

non-terminating party. . .. ( emphasis added)

Paragraphs 6 A and 6 B provide as follows:

A. Reasons for Termination. In addition to the termination provision contained

in paragraph I, QBS, Inc. may terminate this Agreement immediately without notice for the following material breaches by Client:

I. Failure to pay any payment when due as stated in paragraph 3 of this

agreement or to replenish the security deposit within 5 days of receipt

of written notice that such security deposit has fallen below the

amount equal to one service period;

2. Failure to cooperate in the investigation of or report any workplace

complaint or committing any act which usurps QBS, INC's rights as

an employer;

3. Failure to provide and maintain the requisite insurance as provided for

in this Agreement, or

4. If a petition in bankmptcy is filed by or against Client, if client shall

have made an assignment for the benefit of creditors, if Client shall

have voluntarily or involuntarily been adjudicated bankruptcy, or if a

petition is filed for the reorganization of Client.

B. Duties Upon Termination.

I. Upon te1mination of this Agreement, QBS, Inc. shall discontinue

contracted services. Client will be responsible for all employment

matters to its employees effective the date of termination of this

Agreement.

Paragraphs 2 C and 2 D provide that:

C The paities acknowledge that they are entering into a co-employment

relationship concerning worksite employees. The parties shall share the

responsibility for addressing worksite employee issues ai1d claims relating to employment.

13


D. QBS, INC. shall have sufficient authority so as to maintain the right of

direction and control over worksite employees at Client location, and shall retain a right to hire, promote, assign, compensate, discipline, terminate, direct, control and otherwise manage worksite employees.

Thus, Claimant proved the existence of the contract making QBS a co-employer and responsible for providing workers' compensation insurance coverage as provided in the

contract. QBS did not dispute that it had entered into the contract or that it was responsible for the workers' compensation insurance coverage.

Claimant also proved that the contract became effective on January 8, 2015. She proved that the contract was renewable annually unless terminated by either party as set out in the contract. She proved that Michel's alleged work-related accident on July 28, 2015 occurred during the term of the contract which was renewable on an annual basis.

QBS, however, raised an affirmative defense by asserting that it had te1n1inated the contract prior to the one-year expiration on January 8, 2016. QBS argued that it had terminated the contract on July 14, 2015 and that, therefore, it had no liability for Michel's alleged work-related accident and death on July 28, 2015. QBS, as noted above, had the burden of proof on its affirmative defense.

Also, it is clear under Missouri law that when a contract is not ambiguous, the comt will determine the parties' intent from the four corners of the contract. Eisenberg v. Redd, 3 8 S.W.3d 409 411 (Mo. bane 2001). Ifa contract is ambiguous, any ambiguities will be construed against the drafter of the contract, QBS in this case. See Triarch Indusu·ies, Inc. v. Paul A. Crabtree, d/b/a Crabtree Painting, inc. 58 S.W. 3d 772 (Mo. bane. 2005). Transit Cas. Co. in Receivership v. Ce1tain Underwriters at Lloyd's of London, 963 S.W.2d 392, 398 (Mo.App. W.D.1998).

Here, the contract was not ambiguous in making QBS a co-employer and responsible for providing workers' compensation insurance coverage. Furthermore, the

contract contained two specific clauses pertaining to how and when the parties could terminate it. There were miscellaneous other provisions in the contl·act which allowed QBS to terminate it based on a material breach which were not set out in the two specific clauses.

Under paragraph I of the contract, as set out above, either pmty could tem1inate it by giving 30-days advanced written notice to the non-te1n1inating party. While QBS did not

definitively state in its alleged termination notice under which clause of the contract it allegedly terminated the agreement, if it did so under paragraph 1, the termination was not effective as of July 28, 2015, the date of Michel's alleged work-related accident and death.

14


QBS argued that it terminated the contract by written notice on July 14, 2015. That did not constitute 30-days advanced written notice prior to the loss on July 28, 2015.

The other specific clause pe1taining to a termination of the contract set out in paragraph 6 provides that, QBS "may" immediately terminate the contract without notice upon a material breach ofit.7 The clause did not provide that QBS "shall" immediately

terminate the contract without notice upon a material breach of it.

Thus, a mere showing that FCMT may have committed what QBS considered a material breach of the contract did not mean that QBS had, in fact, terminated the contract or that it did so prior to Michel's alleged work-related accident and death. QBS had to prove that it had terminated the contract prior to Michel's alleged work-related accident and death on July 28, 2015.

QBS argued that it terminated the contract because FCMT did not provide the names of all of its employees as required by the contract and that FCMT was paying employees outside of the terms of the contract. QBS' own evidence, however, showed that it did not immediately terminate the contract upon learning of the alleged breach. QBS admitted that instead of immediately terminating the contract upon learning of the alleged breach, it

contacted Ron Hodge, the insurance broker who brought FCMT's business to it, and asked the broker to intervene with FCMT to resolve the matter.

QBS also failed to offer any objective evidence showing that it had terminated the contract prior to Michel's accident and death. Mr. Evette testified that he put the notice of termination of the contract in a Fed Ex package with the payroll checks for FCMT for July 17, 2015. Claimant testified that she did not receive any such notice of termination of the contract in July 2015 or at any time prior to Michel's death. Mr. Evette admitted that the alleged notice of termination of the contract was not addressed to Claimant. He admitted

7 That clause is also ambiguous. It provides that QBS may terminate the contract without notice upon a material

breach of it, but it does not provide whether QBS later had to provide notice to inform the client that the contract was

terminated or when QBS needed to provide such notice. An ambiguous contract must be construed against the

drafter of the contract, QBS in this instance.

Also, however, Mr. Evette testified on cross-examination that notice was always required to terminate the contract.

Mr. Evette's testimony made sense and provided some clarity to the ambiguities in the contract. If notice were not

required at some point following an "immediate termination without notice" the contract would not make sense.

Without notice, the client would not know that the contract had been terminated and that it no longer needed to

perform under the contract. In addition, unless notice were provided, the client would possibly face substantial

penalties and damages based on the unpaid state and federal taxes QBS was obligated to pay on the client's behalf

under the terms of the contract and the client would be left without workers' compensation insurance coverage,

another obligation of QBS under the contract.

15


that it was addressed as "To whom it may concern." He admitted that the alleged notice of

termination of the contract was not dated.

Furthermore, Q BS did not present a certified or registered mail receipt, or any

objective proof showing that it had sent notice of the alleged termination of the contract to

FCMT prior to Michel's accident and death on July 28, 2015. The only certified mail proof

offered into evidence was the envelope dated August 13, 2015, which Claimant testified

contained an undated notice of termination of the contract. The notice received by Claimant

in the envelope post marked August 13, 2015 closed by stating that "QBS, Inc. now

terminates the relationship with First Class Medical Transportation back to the last payroll

which was pay period end date July 14th, 2015 (pay date July 17th 2015)."

The August 13, 2015 letter stated nothing about a prior notice of termination of the contract effective with July 14, 2015. The notice did not explain why it was sent on August

13, 2015 if the contract had already been terminated by a notice sent to FCMT on July 15,

2015 with July 14, 2015 as the effective date for the termination of the contract.

The August 13, 2015 notice, which was the only one QBS proved that it sent to

FCMTwas ofno probative value in support ofQBS' argument that it had terminated the

contract prior to Michel's accident and death on July 28, 2015. It was of some probative

value in support of Claimant's argument that QBS did not terminate the contract until

August 13, 2015 after Michel's accident and death based on the reasons as set out above.

There was also other evidence, which supported Claimant's argument that QBS had not terminated the contract effective with July 14, 2015. The contract in paragraph 6 B

specifically provided that once terminated, QBS " .... shall discontinue contracted services.

Client will be responsible for all employment matters to its employees effective the date of

termination of this Agreement ... " (emphasis added).

Claimant testified in her deposition in a declaratory judgment action offered into

evidence by QBS in the workers' compensation case that Josh, the vice-president of QBS,

contacted FCMT on July 29, 2015 and asked where was the wire transfer for the payroll.

(See Kristin Ziade deposition p. 67). 8 QBS did not offer a credible explanation as to why

ifit had tenninated the contract effective with July 14, 2015 it contacted FCMT two weeks

later to inquire about the wire transfer for FCMT's July 31, 2015 payroll. Again, the

8 Mr. Evette also admitted that QBS was going to do FCMT's payroll on July 31, 2015. He gave as a reason for doing the payroll Michel's death. That, however, did not compart with the contract, which provided that QBS "shall" discontinue all contacted services upon a termination of the agreement.

16


contract provided that QBS shall, and not may, terminate contracted services upon

termination of the contract.

QBS failed to prove that it had tetminated the contract prior to Michel's alleged

work-related accident and death on July 28, 2015. Thus, Claimant proved an employee and

employer relationship between QBS and Michel on July 28, 2015.

Accident

The applicable statute pet1aining to accident and injury provides in pertinent patis as

follows:

2. The word "accident" as used in this chapter shall mean an unexpected traumatic event or unusual strain identifiable by time and place of occurrence and producing at the time objective symptoms of an injury caused by a specific event during a single work shift. An injury is not compensable because work was a triggering or precipitating factor.

3. (1) In this chapter the tetm "injury" is hereby defined to be an injury which has arisen out of and in the course of employment. An injury by accident is compensable only if the accident was the prevailing factor in causing both the resulting medical condition and disability. "The prevailing factor" is defined to be the primary factor, in relation to any other factor, causing both the resulting medical condition and disability.

(2) An injury shall be deemed to arise out of and in the course of the employment only if:

(a) It is reasonably apparent, upon consideration of all the circumstances, that the accident is the prevailing factor in causing the injury; ...

§287.020.2 RSMo. 2005

On July 28, 2015, a co-employee shot and killed Michel Ziade while both were allegedly

performing their work duties. That clearly constituted an unexpected traumatic event identifiable

by the time and place of occmTence caused by a specific event during a single work shift.

Claimant, also, however, had to prove that Michel's death arose out of an in the course at1d scope of

his employment. She met her burden of proof.

Claimant, as Michel's employer and FCMT's owner, testified that one of Michel's duties

was to do business development. She testified that she sent Michel to the KU Rehabilitation Center

17


on July 28, 2015 to deliver gift cards to their clients in the rehab facility. She testified that he was

giving out gift cards to build good will for the company as part of his business development duties ..

Michel's co-employees, Ben Davis and Stanley Burleson, testified by deposition that Michel was also either helping to push or supervising them as they were trying to push and load a large man in a wheelchair into one ofFCMT's vans immediately prior to the shooting. Their testimony clearly supported Claimant's argument that Michel was in the course and scope of his employment at the time of the shooting.

Detective Sutton, who arrested Willie Parker, testified that Willie confessed to the murder and that Willie told him that he shot Michel due to an argument over Willie's pay. The detective testified that Willie indicated that he did not believe that he was being properly compensated for the services he rendered for the company.

QBS offered no evidence showing that Michel was on a personal errand when the assault occurred. Also, Missouri law recognizes three categories of assaults. The three categories are personal, neutral and assaults based on work. Assaults involving disputes over work and neutral assaults, as opposed to personal assaults, are compensable. Person v. Scullin, 523 S.W.2d 801 (Mo. bane 1975); Flowers v. City of Campbell, 384 S.W. 3d 305 (Mo. App. S.D. 2012); Scheper v. Hair Repair, Ltd, 825 S.W. 2d 1 (Mo. App. 1991); Freeman v. Callow; 525 S.W. 3d 371 (Mo. App. 1075).

Claimant proved, as set out above, that Michel's assault arose over his work. QBS countered by offering some "wild" unsupported suppositions that Willie killed Michel because Willie did not like white people and that Willie was upset over a loan Michel had made to him prior to the murder. There was no credible evidence to support either "wild" allegation as the basis for the assault.

While Detective Sutton acknowledged that Willie had expressed a dislike of white people, the detective testified that Willie told him that he murdered Michel over a dispute over his pay.

Similarly, QBS offered no evidence showing that the murder had anything to do with a loan Michel had made to Willie prior to the murder.

Claimant met her burden of proof. She proved that Michel sustained a work-related accident arising out of and in the course and scope of his employment resulting in his death.

Whether Claimant Remarried After Michel's Death

QBS argued that Claimant married Adel Azzeh in a marriage ceremony in Missouri after Michel's death. Again, that argwnent lacked merit. Missouri law provides that a marriage license is required for a valid man'iage in the state of Missouri. See§ 451.040 RSMo. 2014. Both Claimant and Mr. Azzeh admitted that they did not obtain a marriage license.

18

(


Claimant testified that she did not many Mr. Azzeh. She testified that she did not have a maniage ceremony with Mr. Azzeh. QBS offered no credible or objective evidence in support of its argument that Claimant had remarried after Michel's death. Claimant proved that she was the widow and that as such she was entitled to death benefits.

Division of Death Benefits

Michel Ziade was survived by two dependents: Claimant, his widow; and Talia Ziade, date of birth November 11, 2009, his minor daughter. The parties stipulated that the compensation rate in the case for death benefits was $666.67 per week. Based on the evidence offered, the widow and dependent daughter are each entitled to approximately 50 percent of the $666.67 per week in death

benefits or $333.34 per week for the widow and 333.33 per week for the dependent daughter.

QBS's liability for death benefits commenced on July 29, 2015, the day after Michel's death. Therefore, as of April 18, 2019, the date of the hearing, QBS was liable for 194-1/7 weeks of death benefits at the rate of $666.67 per week for a total of $129,429.22. The widow's share of the past due death benefits as of April 18, 2019 was $64,715.58 and the minor daughter's share was $64,713.64. QBS is ordered to pay the past due benefits to the widow and minor daughter. Because, however, the daughter is a minor and due to the amount of her share of the past due death

benefits, a conservatorship must be set up for the minor daughter's share and QBS shall make the past due payments to the conservator in care of Talia Ziade.

Effective with April 19, 2019, QBS shall pay $333.34 per week in death benefits to the widow and $333.33 per week in death benefits to Talia. The widow's share of the death benefits shall remain in effect for life unless she remanies. See § 287.240 RSMo. 2005. In the event that the widow rematTies, she shall receive a lump sum dowry worth 104 weeks of her weekly benefits amount of$333.34 in death benefits. Id. If Talia is still a dependent under the law at the time of her mother's rematTiage or death, Talia shall receive the entire $666.67 per week in death benefits effective with the date of her mother's remaniage or death, and she shall remain entitled to that

weekly ainount in death benefits for so long as she remains a dependent under the Act. Id.

Talia, who is not physically nor mentally handicapped, shall be entitled to her share of the death benefits until the age of 18 or 22 if she remains a full-time student at an accredited educational institution until that time. When Talia no longer qualifies for death benefits under the

Act, her share shall be paid to Claimant as the widow as long as Claimant has not rematTied. Id.

Finally, Claimant, as the mother and natmal guai·dian of Talia, shall use Talia's share of the money for Talia's support and maintenance. An attorney's fee of25 percent of the mother's share

of past due and future death benefits at1d 25 percent of Talia's past due and future share of the death benefits is awarded to their attorney, Mr. Thomas Stein.

19

Issued by Division of Workers' Compensation Employee: Michel Ziade Injury No. 15-0.64339

Whether Judicial Estoppel is Appropriate in the case

QBS argued that judicial estoppel was appropriate in the case. In support of its argument,

QBS cited a recent Missouri Supreme Comt decision where the Court applied the principle of

judicial estoppel. See Matthew D. Vacca v. Missouri Department of Labor and Industrial Relations,

Division of Workers' Compensation and Brian May. No. SC 96912 (Mo. bane March 19, 2019).

The Comt noted in Vacca that judicial estoppel was appropriate when a patty made inconsistent

claims in separate judicial proceedings involving the same issue.

In one case, Mr. Vacca argued that he was entitled to benefits based on his inability to work. In another case, he argued that he was entitled to damages for future loss wages based on his ability to work. The Court found that Mr. Vacca' s claims were inconsistent. The Court also stated that:

"Judicial estoppel is invoked to protect the dignity of the judicial proceedings and to prevent parties from playing fast and loose with the judicial process by taking inconsistent positions in two different proceedings."

The Court in Vacca also noted the three different standards as set out by the United States Supreme Court in applying the principle of judicial estoppel. Those standards were as follows:

1. Whether a party's later position is "clearly inconsistent" with its earlier position;

2. Whether the party succeeded in persuading a court to accept the party's earlier position, "creating" the perception that either the first or the second court was misled, and

3. Whether asse1ting an inconsistent position would give the party "an unfair advantage or impose an unfair detriment on the opposing patty if not estopped."

QBS did not show that judicial estoppel was appropriate in Claimant's case. First, it was not clear that Claimant took inconsistent position in two different proceedings. QBS based its argument on a letter written by FCMT's attorney to American Service Insurance Company, FCMT's liability insurer.9 FCMT's attorney stated in the letter that Talia Ziade's attorney had made a demand on FCMT due to the wrongful death of Talia's father. FCMT's attorney demanded that FCMT' s liability insurer pay the demand.

In addition, FCMT's attorney stated that Michel Ziade was on a personal non-business related errand at the time of the shooting. 10 He also stated that his investigation revealed that

'FCMT's liability insurer was a different insurance company than the workers' compensation insurer.

10 That statement was not made in any pleading. It was also ambiguous. Under workers' compensation laws, giving

out gift cards to clients could be in the course and scope of employment when the employee's job duties involved

business development, regardless of what an attorney may have stated in settlement negotiations in a potential

wrongful death civil action. In addition, Claimant's evidence at the hearing showed that regardless of the purpose of

giving out the gift cards, Michel was performing work in the course and scope of his employment at the time of the

20


FCMT was at fault in the death of Michel Ziade due to its negligent hiring practices and failure to supervise Willie Parker.

Subsequently, the liability insurer filed a declaratory judgement action in the United States District Court for the Western District of Missouri seeking a finding that FCMT did not have insurance coverage in the policy with it for the death of Michel. The insurer argued in its motion for summary judgment that in April 2015 FCMT had dropped coverage in its general liability policy for bodily injuries caused by employees ofFCMT. Michel was murdered on July 28, 2015. Based on those facts, Talia Ziade's attorney and FCMT advised the Court that they could not oppose the motion for summary judgment. The motion was granted.

Thus, QBS offered no evidence showing that FCMT or Claimant ever made a statement in any pleading inconsistent with Claimant's position in her workers' compensation case. Claimant never testified in any judicial proceeding that Michel was on a personal, non-business related e1Tand at the time of the shooting .. Also, any such testimony would have conflicted with the uncontroverted facts of the case, which showed that immediately prior to the shooting Michel was assisting with loading a large man in a wheelchair into an FCMT van.

Finally, there was no decision in any prior judicial proceeding in which Claimant made a statement inconsistent with her position in her workers' compensation case. There was no decision where any Court relied on any alleged inconsistent statement made by Claimant. The declaratory judgment decision, as noted above, was based on a finding of no insurance coverage. The decision had nothing to do with whether Michel was acting in the course and scope of his employment at the time of the shooting or on a personal en-and and Claimant did not persuade the Court to make its rnling on any such basis.

Clearly, neither Claimant nor FCMT succeeded in persuading a Court to accept any position contrary to or inconsistent with Claimant's position in her workers' compensation case. QBS did not prove that judicial estoppel was appropriate in the case.

Collateral Estoppel

QBS argued that Claimant should be collaterally estopped from pursuing a workers' compensation case based on the statement made by FCMT's attorney to FCMT's liability insurer that Michel was on a personal non-business related errand at the time of the shooting. Again, QBS' argument was misplaced.

Collateral Estoppel is a common law estoppel doctrine that prevents a person from relitigating an issue. It is sometimes refen-ed to as issue preclusion. In James v. Paul, 485 S.W.3d 678 (Mo. bane 200 I), the Missouri Supreme Court addressed collateral estoppel. The Missouri Supreme Court stated that "Before giving preclusive effect to a prior adjudication under collateral estoppel principles, the Court must consider four factors:"

shooting. Michel was assisting with the loading of a large man in a wheelchair into an FCMT van when Willie arrived

at the KU Rehabilitation Center and engaged in an argument with Michel over his pay and then shot and killed Michel.

21

Issued by Division of Workers' Compensation Employee: Michel Ziade · Injury No. 15-064339

(1) whether the issue decided in the prior adjudication was identical to the issue presented in the present action;

(2) whether the prior adjudication resulted in a judgment on the merits;

(3) whether the party against whom estoppel is asserted was a party or was in privity with a party to the prior adjudication; and

( 4) whether the party against whom collateral estoppel is asserted had a full and fair opportunity to litigate the issue in the prior suit". Oates v. Safeco Ins. Co. of Am., 683 583 S.W.2d 713, 719 (Mo. bane 1979).

The Court also stated that the doctrine of collateral estoppel will not be applied where to do so would be inequitable. Id. at 721. The Court stated that each case must be analyzed on its own facts. Id. at 719 ( describing the method employed in Bernhard v. Bank of Am. Nat'!. Trust & Sav. Ass'n, 19 Cal. 2d 807, 122 P.2d 892 (1942)).

Here, it was clear that collateral estoppel was not appropriate in Claimant's case. The issue of whether Michel was acting in the course and scope of his employment was not litigated in any prior adjudication. The prior declaratory judgment action, or prior adjudication, did not result in a judgment on the merits. The only decision made by the Court in the prior declaratory judgment adjudication was a finding that prior to Michel's death, FCMT had dropped its coverage in its liability policy for bodily injuries, to its employees caused by other employees. That decision had nothing to do with the issues involved in Claimant's workers' compensation case.

Thus, there was no decision on the merits in a prior adjudication. There was no identity of issues in the prior declaratory judgment adjudication and the issues in Claimant's workers' compensation case. Collateral estoppel is not appropriate in Claimant's workers' compensation case.

Burial Allowance

The evidence showed that Claimant spent more than $5,000 in burial expenses in the case. Because the statute allows a maximum of$5,000 for the burial allowance, that amount is awarded to Claimant for the burial expenses in the case.

I certify lhnt Oil (p-i<, {q -/ q ' I delivered a copy of the foregoing award lo the parties to the case. A complete record of the method of delivery and date of service upon each party is retained with the executed award in the Division's case file.

By, ___ _,,Aci,:,i...,lf,Cl(.l.,'/'------

Made by: /7 "

_{_..-~

Kenneth J. Cain Administrative Law Judge

Division of Workers' Compensation

22

final award allowing compensation · checked by: kjc/pd mr. michel ziade was an employee of first...

Documents