287.040. Liability of employer--contractors, subcontractors. - Missouri Statutes

Liability of employer--contractors, subcontractors.

287.040. 1. Any person who has work done under contract on or abouthis premises which is an operation of the usual business which he therecarries on shall be deemed an employer and shall be liable under thischapter to such contractor, his subcontractors, and their employees, wheninjured or killed on or about the premises of the employer while doing workwhich is in the usual course of his business.

2. The provisions of this section shall not apply to the owner ofpremises upon which improvements are being erected, demolished, altered orrepaired by an independent contractor but such independent contractor shallbe deemed to be the employer of the employees of his subcontractors andtheir subcontractors when employed on or about the premises where theprincipal contractor is doing work.

3. In all cases mentioned in the preceding subsections, the immediatecontractor or subcontractor shall be liable as an employer of the employeesof his subcontractors. All persons so liable may be made parties to theproceedings on the application of any party. The liability of theimmediate employer shall be primary, and that of the others secondary intheir order, and any compensation paid by those secondarily liable may berecovered from those primarily liable, with attorney's fees and expenses ofthe suit. Such recovery may be had on motion in the original proceedings.No such employer shall be liable as in this section provided, if theemployee was insured by his immediate or any intermediate employer.

4. The provisions of this section shall not apply to the relationshipbetween a for-hire motor carrier operating within a commercial zone asdefined in section 390.020 or 390.041, RSMo, or operating under acertificate issued by the Missouri department of transportation or by theUnited States Department of Transportation, or any of its subagencies, andan owner, as defined in subdivision (43) of section 301.010, RSMo, andoperator of a motor vehicle.

(RSMo 1939 § 3698, A.L. 2005 S.B. 1 & 130)

Prior revision: 1929 § 3308

(1958) Filling station employee injured while working on his own private car during working hours held not to have suffered injury arising out of and in course of employment. Carriker v. Lindsey (A.), 313 S.W.2d 43.

(1960) Government contractor employed guards to protect work on classified material under government contract and also arranged with a corporation providing guard service to provide some of the guards. Since the government contractor had control of the guards furnished by the separate corporation they were statutory employees and therefore subject to the workmen's compensation law. Anderson v. Benson Mfg. Co. (Mo.), 338 S.W.2d 812.

(1960) Where comprehensive liability policy issued to employer stated that it did not provide coverage "to any employee with respect to injury to another employee of the same employer injured in the course of such employment in an accident arising out of the maintenance or use of the automobile in the business of such employer" it excluded coverage to statutory employee who was employed by an independent contractor to perform services on the premises of the employer. Ward v. Curry (Mo.), 341 S.W.2d 830.

(1960) Iron worker employee of contractor, who had contract with steel company under which contractor's operations were conducted almost as a department of the steel company, who was injured while performing duties at direction of the steel company held subject to the workmen's compensation law of Missouri and therefore not entitled to maintain an action for his injuries against the steel company. Kirch v. Armco Steel Corp., 274 F.2d 120.

(1961) A siding applicator, injured in fall from scaffold, was statutory employee of contractor where he and co-worker performed bulk of the job the contractor had agreed to perform and it was immaterial whether he was an employee or independent contractor. Schwandt v. Witte (Mo.), 346 S.W.2d 50.

(1962) In personal injury action against steel company evidence presented question for jury as to whether plaintiff, driver of truck for contractor who provided delivery service for the steel company, was statutory employee of steel company. Walton v. United States Steel Corp. (Mo.), 362 S.W.2d 617.

(1962) An implied contract according to the customs of the trade is sufficient to make the contractor an employer for workmen's compensation purposes. Cross v. Crabtree (A.), 364 S.W.2d 61.

(1964) In view of sections 287.040 and 287.120 subcontractor's injured employee could not maintain common law action for damages against general contractor. Thompson v. Kroeger (Mo.), 380 S.W.2d 339.

(1965) Employee of a janitorial service firm suffered injury while applying caustic solution to a floor under direction of agent of defendant shoe manufacturer. Held facts did not justify a finding that plaintiff was an employee of defendant shoe firm for purposes of workmen's compensation. Musielak v. International Shoe Company (A.), 387 S.W.2d 217.

(1965) In those instances where an owner is having improvements erected, demolished, altered or repaired by an independent contractor, an intermediate subcontractor, between the general contractor and the subcontractor at the bottom of the chain, occupies a status of statutory employer of the employees of their subcontractor, is secondarily liable for injuries to these employees, and is rendered immune from suits based on negligence by this section. Anderson v. Steurer (Mo.), 391 S.W.2d 839.

(1965) "Premises", as used in this section contemplates any place, under exclusive control of employer, where employer's usual business is being carried on or conducted. Johnson v. Simpson Oil Co. (A.), 394 S.W.2d 91.

(1966) Person who was injured while installing electrical outlets under contract in a store was not an employee of the store within the meaning of this section where the installation of electrical outlets was not a usual activity in the course of the store's business. Shireman v. Rainen Home Furnishers, Inc. (A.), 402 S.W.2d 64.

(1967) Where employee of independent contractor was injured while operating bulldozer for employer on premises leased by partnership from county as rubbish disposal area at time when partnership had no permission from city to do any work in area and had no right to exclusive control of area, partners were not employee's statutory employer and bulldozing of road was not part of usual business of partners. Nagle v. Drew (A.), 409 S.W.2d 264.

(1967) An organization engaged in the business of furnishing workmen to its customers, usually on a temporary basis, charging the customer and paying the furnished workmen was not an independent contractor within the meaning of this section. Wright v. Habco, Inc. (Mo.), 419 S.W.2d 34.

(1968) Insurer who refused to defend in state court negligence action after timely notice is collaterally estopped in case to enforce the judgment from claiming employee was covered by workmen's compensation. Aetna Casualty and Surety Co. v. Hase (A.), 390 F.2d 151.

(1970) Where the evidence establishes that the prime contractor is the statutory employer of an employee of subcontractor, workmen's compensation relief is the exclusive remedy and no action based on negligence can be maintained against the prime contractor. Maryland Casualty Co. v. Dondlinger and Sons Const. Co. (CA Mo.), 420 F.2d 1368.

(1971) Highway contractor who contracted with oil jobber for supply of fuel to contractors' machinery at construction site was not statutory employer of driver of oil jobber's truck who was injured in accident while delivering fuel at construction site. Wallace v. Porter DeWitt Construction Company (A.) 480 S.W.2d 129.

(1972) In action by truck driver for damages for personal injuries sustained in helping defendant's employee unload carpeting consigned to defendant carpet installer, issue as to whether or not unloading of carpeting was part of usual business which defendant carried on so as to make plaintiff a statutory employee or borrowed servant of defendant with exclusive remedy under workmen's compensation law was for the jury. Sippel v. Custom Craft Tile, Inc. (A.), 480 S.W.2d 87.

(1972) As used in subdivision 1 of this section, the term "premises" is not restricted to the permanent site of the statutory employer's business nor limited to property owned or leased by him, but contemplates any place under the exclusive control of the statutory employer where his usual business is being carried on or conducted. Boatman v. Superior Outdoor Advertising Co. (A.), 482 S.W.2d 743.

(1973) Truck driver held not statutory employee when injured while assisting unloading of truck required only by Union Rule and not by contract between employer and customer. Ferguson v. Air-Hydraulics Co. (A.), 492 S.W.2d 130.

(1974) Held evidence that carpenter remodeling a garage for brick manufacturer to be leased to a trucking company hauling bricks was not a statutory employee of either company. Saale v. Alton Brick Company (A.), 508 S.W.2d 243.

(1974) Employee injured on parkway of public street while returning to work from place where she took her meal was not compensable. Spacy v. Stout's Feed and Supply (A.), 512 S.W.2d 849.

(1976) Held, an employee may be determined to be a "statutory employee" as a matter of law and this status does not have to be a jury question. Brown v. Gamble Construction Co., Inc. (A.), 537 S.W.2d 685.

(1976) To become a statutory employee three conditions must be met: 1. The work was performed under a contract; 2. The injury must have occurred on or about the premises of the employer; 3. The injury must have occurred while performing work normally done in the usual course of business of the employer. Miller v. Municipal Theatre Ass'n of St. Louis (A.), 540 S.W.2d 899.

(1987) Claimant who was injured while repairing the public address system for racetrack was not an employee under this section entitled to benefits since work performed was not done in furtherance of the usual operation of the racetrack. Rouge v. St. Charles Speedway, 733 S.W.2d 854 (Mo.App.).