Ziade v. Quality Bus. Solutions, Inc.

618 S.W.3d 537

Michel ZIADE, Respondent,

v.QUALITY BUSINESS SOLUTIONS, INC., Appellant.

WD 83763

Missouri Court of Appeals, Western District.

Filed: FEBRUARY 9, 2021

Thomas Stein, Kansas City, MO, Counsel for Respondent.

Ashley Broderick, Kansas City, MO, Counsel for Appellant.

Before Division Four: Cynthia L. Martin, Chief Judge, Presiding, Mark D. Pfeiffer, Judge and Anthony Rex Gabbert, Judge

Anthony Rex Gabbert, Judge

Quality Business Solutions, Inc. ("QBS") appeals the final award allowing compensation entered by the Labor and Industrial Relations Commission ("the Commission"). QBS complains in three points on appeal that the Commission erred in finding Michel Ziade was an employee, in refusing to apply judicial estoppel, and in refusing to apply collateral estoppel. We affirm the Commission's judgment in part, reverse the Commission's judgment in part, and enter judgment pursuant to Rule 84.14.

Facts

Kristin Ziade started First Class Medical Transportation ("FCMT") in 2010. She was the president and 100 percent owner of the company. Michel Ziade, Kristin's¹ husband, worked for FCMT. Prior to July 2015, FCMT entered into a Client Services Agreement with QBS making QBS a joint employer with FCMT. Per the agreement, QBS was responsible for providing workers’ compensation insurance coverage for FCMT employees.

On July 28, 2015, an FCMT employee named Willie Parker murdered Michel at the University of Kansas Rehabilitation Center. Parker confessed to murdering Michel over a dispute involving Parker's pay. Parker 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. Michel was survived by Kristin and their daughter.²

Kristin submitted a claim for compensation to the Missouri Department of Labor and Industrial Relations Division of Workers’ Compensation ("the Division"). The claim identified the employers as FCMT and QBS. QBS claimed it had terminated the Client Services Agreement prior to the July 28, 2015 murder. Kristin testified the only termination letter pertaining to the Client Services Agreement she received was in an envelope postmarked August 13, 2015. QBS also claimed that judicial estoppel and collateral estoppel were appropriate because Kristin took the position in a civil lawsuit that Michel was on a personal errand when he was murdered.

The matter proceeded to a hearing.³ The Administrative Law Judge ("ALJ") found in his well-articulated twenty-two page ruling that QBS failed to prove it terminated the Client Services Agreement prior to Michel's murder. He further found that Kristin met her burden of proving that Michel's murder arose out of and in the course and scope of his employment. The ALJ found that judicial estoppel was not appropriate because it was not clear Kristin took inconsistent positions in two different proceedings, any finding that Michel was on a personal errand would conflict with the uncontroverted evidence in the case, and there was no decision in a prior proceeding where the inconsistent position was allegedly taken. He found that collateral estoppel was not appropriate because the issue of whether Michel was on a personal errand was not litigated in a prior proceeding and there was no decision on the merits. The ALJ awarded death benefits in the amount of $666.67 per week.

The Commission affirmed the ALJ's award with a supplemental opinion. It agreed with the ALJ that QBS failed to prove it terminated the Client Services Agreement prior to Michel's murder. It further found that issues of judicial estoppel and collateral estoppel are outside the scope of the Division's and the Commission's jurisdiction. The Commission disavowed the ALJ's affirmative findings with respect to judicial estoppel and collateral estoppel. It adopted the ALJ's award and decision to the extent it is not inconsistent with the supplemental decision.

This appeal by QBS follows.

Standard of Review

"On appeal, this Court reviews decisions by the Commission to ensure they are ‘supported by competent and substantial evidence.’ " White v. ConAgra Packaged Foods, LLC , 535 S.W.3d 336, 338 (Mo. banc 2017) (quoting Mo. Const. article V, sec. 18 ).

The Commission's decision will only be disturbed if: (1) the Commission acted without or in excess of its powers; (2) the award was procured by fraud; (3) the facts found by the Commission do not support the award; or (4) there was not sufficient competent evidence in the record to warrant the making of the award.

Id. (citing § 287.495.1, RSMo ).

"In reviewing the Commission's decision, we view the evidence objectively and not in the light most favorable to the decision of the Commission." Seifner v. Treas. of State-Custodian of Second Injury Fund , 362 S.W.3d 59, 63 (Mo. App. W.D. 2012). "We defer to the Commission on issues concerning credibility and the weight to be given conflicting evidence." Miller v. Treas., State , 425 S.W.3d 218, 220 (Mo. App. E.D. 2014). "However, this Court reviews questions of law independently and is not bound by the Commission's conclusions of law or its application of the law to the facts." Id.

Point I

Two different Client Services Agreements were introduced at the hearing. One was from August 2014 while the other was from January 2015. The two agreements are almost identical. The August 2014 contract did not require notice be addressed to Kristin specifically. The January 2015 contract did require notice be given to Kristin specifically but was not signed by QBS. QBS argues that that January 2015 contract is not an enforceable contract because of the lack of QBS signature. The ALJ and the Commission found that the January 2015 contract was in effect at the time of Michel's death.

In its first point on appeal, QBS claims the Commission erred as a matter of law in finding that Michel was its employee on July 28, 2015. Specifically, QBS claims the ALJ did not provide any analysis for how he came to the decision to use the January 2015 Client Services Agreement, and therefore the Commission could not determine if his analysis of this issue was done adequately or if an analysis was performed at all.

QBS's point is worded as a complaint about the extent of the findings made in this case. The alleged error is identified as an error of law. Section 287.460 states in relevant part:

1. The division, through an administrative law judge, shall hear in a summary proceeding the parties at issue and their representatives and witnesses and shall determine the dispute by issuing the written award within ninety days of the last day of the hearing. ... The award, together with a statement of the findings of fact, rulings of law and any other matters pertinent to the question at issue, shall be filed with the record of proceedings....

"Section 287.460.1 mandates that an award in a contested workers’ compensation case be accompanied by findings of fact and conclusions of law." Jim Plunkett, Inc. v. Ard , 499 S.W.3d 333, 337 (Mo. App. W.D. 2016) (internal quotation marks omitted). "The Missouri Supreme Court has declared that such statutory requirements contemplate an unequivocal affirmative finding as to what the pertinent facts are." Id. (internal quotation marks omitted). "The factual findings are necessary so that we can know what a decision means before the duty becomes ours to say whether it is right or wrong." Id. (internal quotation marks omitted). "The findings should be designed to show whether the basis of the decision was an issue of fact or a question of law." Carver v. Delta Innovative Services , 379 S.W.3d 865, 870 (Mo. App. W.D. 2012) (internal quotation marks omitted). "Without factual findings, it can be very difficult to ascertain why the Commission ruled as it did so that we can perform our duty of review under section 287.495." Id. (internal quotation marks omitted).

"An agency needs to provide the ‘basic findings’ upon which its decision rests." Id. (internal quotation marks omitted).

"The basic findings are those on which the ultimate finding rests; the basic findings are more detailed than the ultimate finding but less detailed than a summary of the evidence." Id. (internal quotation marks omitted). "Although detailed summaries of the facts are not required in an agency's order and report, the findings should be sufficient to demonstrate how the controlling issues have been decided." Id. (internal quotation marks omitted).

The ALJ found that QBS entered into a Client Services Agreement with FCMT on January 8, 2015 which made QBS a co-employer of FCMT's employees. It found that QBS did not terminate the agreement prior to Michel's death. The ALJ concluded that Michel was an employee of QBS at the time of his death. These are sufficient findings. The ALJ was not required to provide a further analysis of why it made this factual finding. Thus, the Commission did not err in adopting the decision of the ALJ as its own with respect to this issue.⁴

In the argument section of its brief, QBS goes further and argues that "there is not sufficient competent and substantial evidence" to support the finding that Michel was an employee of QBS at the time of his death. This is a very different claim of error than the one identified in the point relied on. "Arguments advanced in the brief but not raised in the point relied on are not preserved, and will not be addressed by this court." Burg v. Dampier , 346 S.W.3d 343, 354 (Mo. App. W.D. 2011) (citing Rule 84.04(e)).

Further, QBS does not follow the required analytical process for raising a section 287.495.1(4) challenge.

When a party raises a claim that the Commission's findings are not supported by sufficient competent evidence, he or she must:

(1) marshal all record evidence favorable to the award; (2) marshal all unfavorable evidence, subject to the Commission's explicit or implicit credibility determinations; and (3) show in the context of the whole record how the unfavorable evidence

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