Opposition Brief — Bass v. National Super Markets, Inc.

-

TF Suprem Co

e ty U.S.

No. 95-1505 wer

APR 19 1996

In The

Supreme Court of the Ts es

*

October Term, 1995

LOUISE BASS, Surviving Spouse of KENNETH BASS,

Deceased, MAURICE BASS and CHRISTOPHER BASS,

Petitioners,

vs.

NATIONAL SUPER MARKETS, INC.,

Respondent.

On Petition for Writ of Certiorari to the

Supreme Court of Missouri

RESPONDENT’S BRIEF IN OPPOSITION

RONALD C. WILLENBROCK

Counsel of Record

AMELUNG, WULFF

& WILLENBROCK, P.C.

Attorneys for Respondent

515 Olive Street

Suite 1700

St. Louis, Missouri 63101

(314) 436-6757

‘gee (800) 3 APPEAL + (800) 5 APPEAL + (800) BRIEF 21

inc.

i

QUESTIONS PRESENTED FOR REVIEW

The following questions, rather than the questions

identified by the petitioners, would be presented for review in

this case:

1. Whether this Court is without jurisdiction to review

petitioners’ petition for writ of certiorari in that the two (2)

questions presented for review in the petition were never

presented to the Missouri courts. These questions were first

raised in petitioners’ Motion for Rehearing to the Missouri

Supreme Court after its opinion.

2. Whether there is a true federal question raised by the

Missouri Supreme Court’s opinion in question (Appendix D to

the petition) for it does not state any “new law”.

3. Whether the Missouri Supreme Court improperly

deprived the petitioners of their right to a jury trial.

4. Whether the Missouri Supreme Court should have given

its decision prospective-only application.

ii

LIST OF INTERESTED PARTIES

The petitioners are Louise Bass, Surviving Spouse of

Kenneth Bass, Deceased, Maurice Bass and Christopher Bass.

The respondent is correctly identified in the caption except

that National Super Markets, Inc. is now in voluntary liquidation

And its parent company is National Tea Company, Inc.

iii

TABLE OF CONTENTS

Page

Questions Presented forReview ................... i

RUMP IPUOUNIND co. cece c cc ccccccocccece.. ii

ESE a ae es Fa ee ee iii

EE Oe nS ee iv

Statement of Jurisdiction ......................... ]

a l

A. Course of Proceedings and Disposition Below . l

B. Corrections of Misstatements in the Petition ... 3

Reasons for Denyingthe Writ ..................... 12

I. The Missouri Supreme Court did not improperly

deprive the petitioners of their righttoa jury trial.

OE ee 14

II. The Missouri Supreme Court should not and could

not give its decision prospective-only application

for to do so would have deprived the respondent of

its procedural due process, since its opinion does

not establish a “new principal oflaw.” ........ 15

ASE SSSR a 17

iv

Contents

Page

TABLE OF CITATIONS

Cases Cited:

Beck v. Washington, 369 U.S.541 (1962) ............ 12,14

Chevron Oil Co. v. Huson, 404 U.S.97,92S. Ct. 349, 30L.

el, LE UOED coc vicbadecuseetnsebebevuwn«s 16

Herndon v. Georgia, 295 U.S. 441 (1935) ............ 12,14

Kemper v. Glick, 39 S.W. 2d 330 (Mo. banc 1934), cert.

denied, 52 S.Ct. 29, 284 U.S. 649, 76L.Ed.551 .... 15

Killian v. J & J Installers, Inc., 802 S.W. 2d (Mo. banc

is SURE EP OPPO TEP r e re Por r ee E rore 15

Leahy v. Leahy, 858 S.W. 2d 221 (Mo. banc 1993) ..... 14

McGuire v. Tenneco, 756 S.W. 2d 532 (Mo. banc 1988) . 17

Summers v. Summers, 707 S.W. 2d 720 (Mo. banc 1985) a

Thurston v. Ballinger, 884S.W.2d (Mo. App. 1994) ... 16

Yee v. City of Escondido, 503 U.S.519(1992) ........ 12,14

Statutes Cited:

SOWA EEET ns acctb ear iesasesntune wens aud 12,14

eee

v

Contents

Page

MSs NE ik thin se pee cout ka ck dha ]

R.S. Mo. § 287.010, DN +. si badtadbiecé be dane l

Pe ME ib kee crak bigs as pide ddec.c..: 1

PCP MIS hii i cnn ncckuiccexions cdsecns 16

ee 17

United States Constitution Cited:

PII 56 coos ois vi dooce 13

FourteenthAmendment ..................0...... 13

1

Respondent requests that the Court deny the petition for writ

of certiorari seeking review of an opinion of the Missouri

Supreme Court. The opinion of the Missouri Supreme Court is

reported at 911 S.W.2d 617 (Mo. banc, petition for rehearing

denied, December 18, 1995). (For the convenience of the Court,

all citations to the opinion will be to the opinion attached as

Appendix D to the petition.)

STATEMENT OF JURISDICTION

This Court cannot properly exercise jurisdiction over this

case pursuant to 28 U.S.C. § 1257(a). The two (2) questions

presented for review in the petition were never presented to the

Missouri courts. These questions were first raised in petitioners’

motion for rehearing to the Missouri Supreme Court after its

opinion. There is no true federal question raised, nor did the

Missouri Supreme Court’s opinion in question (Appendix D to

the petition) state any “new law”.

STATEMENT OF THE CASE

Respondent respectfully opposes the petition for writ of

certiorari. The facts of this case together with the Missouri

Supreme Court’s interpretation of Missouri R.S. § 287.040

(1994) (Missouri Workers’ Compensation Act) raises no

constitutional questions not already answered.

A. Course of Proceedings and Disposition of the Case Below

Petitioners filed their wrongful death action against the

respondent and others in 1988, after petitioners had filed a

Workers’ compensation claim pursuant to the Missouri Workers’

Compensation Act, § 287.010 et seg. Respondent, from the

outset contended that the petitioners’ sole remedy was the

benefits payable under the Missouri Workers’ Compensation

Act, since the decedent as a “Statutory Employee” of respondent

2

pursuant to the Missouri Workers’ Compensation Act. The initial

pleading filed by the respondent was its motion to dismiss for

failure to state aclaim. This was overruled by the Circuit Court.

Later, after the petitioners had received the benefits due

them under the Missouri Workers’ Compensation Act, and

discovery completed, the respondent filed its Motion for

Summary Judgment citing the petitioners’ sole remedy under

Missouri law was the benefits payable under the Missouri

Workers’ Compensation Act. This was overruled by the circuit

court (after it had sustained an identical Motion for Summary

Judgment as to an identical claim by the widow of the security

guard who also was killed during the robbery).

The case proceeded to trial. At the conclusion of the

petitioners’ case, respondent filed its Motion for a Directed

Verdict, among other items the motion stated that the petitioners’

claim was barred by the Missouri Workers’ Compensation Act.

This Motion fora Directed Verdict at the close of the petitioners’

case was denied. Respondent then presented its case and at the

conclusion of all the evidence the respondent filed its Motion for

a Directed Verdict at the close of all the evidence, among other

items the motion stated that the petitioners’ claim was barred by

the Missouri Workers’ Compensation Act. This motion also, was

denied.

The jury returned a verdict against the respondent. Within

the time allowed by the Missouri Rules of Civil Procedure,

respondent file its Motion for Judgment Notwithstanding the

Verdict (hereinafter referred to as “JNOV”). This motion was

sustained. The trial court found that the petitioners’ cause of

action was barred because of the Missouri Workers’

Compensation Act, the decedent was a “Statutory Employee” of

the respondent’s and therefore petitioners’ sole remedy was the

3

benefits already paid to the petitioners under the Missouri

Workers’ Compensation Act.

Petitioners appealed the trial court’s granting of the JNOV

to the Missouri Court of Appeals, Eastern District (see Appendix

E to the petition). Missouri Court of Appeals, Eastern District

Division Three, set aside the trial court’s granting of the JNOV

to respondent, and reinstated the jury’s verdict in favor of the

petitioners. Respondent, before the Missouri Court of Appeals,

Eastern District, sought a rehearing or transfer to the Missouri

Supreme Court, the Missouri Court of Appeals, Eastern District,

denied rehearing or to transfer to the Missouri Supreme Court.

Respondent requested the Missouri Supreme Court to accept

transfer, which they did. The Missouri Supreme Court, (en banc)

handed down their opinion (see Appendix D to the petition) on

November 21, 1995 sustaining the trial court’s granting of the

JNOV to respondent.

Petitioners filed their Motion for Rehearing before the

Missouri Supreme Court, December 6, 1995, (See Appendix

“B”) which motion was denied December 19, 1995. (See

Appendix A to petition).

B. Corrections of Misstatements in the Petition

Respondent is dissatisfied with petitioner’s statement of the

case and therefore provides the Court with the following:

Petitioners’ Statement of the Case is divided into two parts.

The first part, “Failure to Provide Adequate Security” is

irrelevant to the issues raised in petitioners’ petition for writ of

certiorari. Accordingly, respondent will not address this section

of petitioners’ Statement of the Case. Respondent notes herein

that petitioners’ factual summary misstates several aspects of the

evidence at trial. Petitioners’ Statement of the Case factually

4

misstates the testimony that respondent “deviated from its

security procedure(s)” when they stated:

[O})n the night in question, Defendant

deviated from this [security] procedure.

A review of the testimony establishes that there was no

“deviation” in the “security procedure.”

The Deceased was a “Statutory Employee” of respondent.

(In addition to the $165,000 distributed to petitioners from co-

defendant Barrington Bryce Detective Agency as settlement,

petitioners also receive weekly workers’ compensation benefits

from Building Butlers, Inc.)

The second part of petitioners’ Statement of the Case deals

with the “The Statutory Employee Defense.” Petitioners assert

that Bass was employed to perform “specialized” polishing,

buffing, and stripping services at the Natural Bridge store.

Arthur Seise owned Building Butlers, the janitorial company

that provided services to the respondent's Natural Bridge Store.

Seise described the service as “nightly floor service, that is

we dust mopped the floor and scrubbed the floors with an

automatic scrubber” and buffed the floor with a high speed

propane buffer. BBI would “periodically” strip and wax the

floors. The “specialized” service to which petitioners cite is the

Pioneer Eclipse Program (“PEP”). Seise described the PEP as a

line of chemicals and waxes and a line of propane buffers that the

PEP company manufactures for supermarkets and sells to

the program National required BBI to utilize in the Natural

Bridge store. Seise was aware that, during the time BBI was

servicing the Natural Bridge National store, National used the

PEP in all its stores regardless as to whether National's

5

employees or acontractor performed the janitorial services. BBI

provided services to the Natural Bridge store from August, 1986

through the middle of 1988, including the date of this incident.

Seise used the PEP during the entire time Building Butlers

worked at the National store. PEP is just one kind of floor service

program that acompany or janitorial service can use to keep the

floors clean for the public.

5 The only item BBI provided to perform the janitorial service

was the propane buffer that was stored on National premises, and

BBI replaced the pads on the buffer and provide fuel. National

supplied everything else to BBI relative to BBI being able to

perform the job at the Natural Bridge store. National supplied all

of the PEP cleaning materials (i.e., neutral cleaner, wax,

finishing liquids), and all the cleaning utensils such as dust mops

and brooms. National owned the auto scrubber, which was a

machine utilized by Bass or others to clean the floors. The

propane buffer was stored at the Natural Bridge store.

On the night of the incident, Bass was not there for the

purposes of stripping the floor. Bass was there to do something

that National normally had BBI do each night which was to

sweep, mop and buff. In other words, Bass performed the

“regular or nightly maintenance.” Seise usually had one person

assigned to the Natural Bridge store. Bass was the one person

permanently assigned to the Natural Bridge store. During the

period surrounding the time of the incident, National would have

one of BBI’s personnel, in this instance Bass, come to the store

each night. No one from BBI supervised Bass.

Stripping and waxing was not something that is out of the

ordinary as far as floor maintenance is concerned. Based on

Seise’s experience, National would have its floors stripped and

waxed every six to nine months. BBI would strip the floor at

6

National’s request. When stripping, BBI had acrew of 4-5 people

over a 3-4 night period.

Once every 5-8 days National or BBI applied a “restorer” to

heavy traffic areas, and once every two weeks it waxed heavy

traffic areas.

National had the right to direct and replace Bass.

Seise testified that, somehow cleaning had to get done at the

24 hour stores. In 24 hour supermarkets like Price Chopper, since

cleaning activities need to be done to the store such as dust

mopping, wet mopping, and buffing, the cleaning is done at some

point during the 24 hours.

Seise testified that National employees cleaned the floors

during the day.

Seise’s training of his employees to do the job involved of

the lead man or supervisor working with the employees for a

couple of evenings to go through “the regular nightly

maintenance work” with the scrubber, using the product,

demonstrating how to hook up the buffer. Seise had nothing to do

with the training of National employees who performed Bass’

job at its other stores.

After arriving at the Natural Bridge store, Bass would do the

following on a daily basis: | ) sweep the entire sales floor; 2) dust

mop the store picking up labels or gum on the floor with a razor

blade; 3) place the floor soaps into the auto scrubber and scrub

the floor; 4) perhaps incidental spot mopping; and 5) run the

propane after the floor dried. Based upon Seise’s experience, this

daily process was accomplished at the Natural Bridge store when

the store is closed to the public.

7

At the time of the incident, the Natural Bridge store had

three “porters”, two during the day and one at night. The night

person was with the janitorial service. The day porter would dust

mop and wet mop the floor. The cleaning equipment for the

floors, stored at National, included mops, brooms, scrub

machines, and the cleaning supplies. Other than the buffer, the

day porters used all of the equipment.

Co-manager, Joe Lenoir would tell the janitors from BBI of

any special cleaning he wanted done other than the “norm.”

Dan Hughes, Vice President, Smith-Scharff, sold the PEP to

retailers such as National. The PEP floor care system consists of

five components-the floor finish, floor sealer, neutral cleaner,

restoration, and a floor stripper or floor finish remover. The

“program” consists of products and the steps to apply the

“program.” The only component considered to have Causticity is

the floor stripper. If used properly, there should be no exposure

to the product.

Hughes testified to the daily, weekly, monthly, and yearly

maintenance and reviewed the steps of each. The “yearly”

maintenance actually varied and 6-8 uses per year is normal in

the grocery industry because of the foot traffic. The daily

maintenance involves sweeping the floor, removing gum and

stickers, cleaning with the auto scrubber, and buffing. All the

steps of the daily maintenance are necessary to perform the

program and are “integral” to the process, including sweeping

and mopping.

National purchases ali of its cleaning products from Smith-

Scharff. Since 1984, National purchased from Smith-Scharff all

of the floor cleaning products and equipment for the PEP from

Smith-Scharff for all of its stores.

There are other companies that Smith-Scharff distributes

for that have similar floor care programs to the PEP. Hughes has

sold the PEP to National’s competitors like Schnuck’s and

Dierberg’s and Shop-N-Save. It is the custom in the supermarket

industry to do the four step daily maintenance when the store is

closed to the public, if possible, so as not to interfere with

customers. National uses the PEP products and equipment on the

floor during the day.

Schnucks and Dierberg’s used its own in-house employees

to apply the PEP. Hughes participated in the training of the

Schnuck’s and Dierberg’s employees as to how to apply the PEP.

Like National, Shop-N-Save used both its own in-house

employees and janitorial services and participated in the training

of the Shop-N-Save employees regarding how to apply the PEP.

National purchased an average of 5-8 auto scrubbers per

year at a cost of $6,000 to $6,500 per scrubber. National also

bought buffers from Smith-Scharff.

Anthony Summers was the Store Services Manager at

National from 1982 through at least the time of the incident.

Summers’ duties consisted of, among other things, hiring the

floor cleaning contractors and obtaining the chemicals and

products used for cleaning the stores’ floors. During that time,

Missouri regulations existed regarding cleaning the floors in the

stores in order to sell groceries in Missouri which National had

to follow. Summers identified Department of Health

Regulations governing sanitation of retail stores, which

included a section regarding sanitation of floors. It was

Summers’ job to make sure National followed those rules.

Summers also confirmed that National had to comply with the

Department of Health rules, paragraph 23, which provides:

9

Cleaning of floors, walls and ceilings shall be

done as often as necessary but preferably

during periods when the least amount of food

is exposed such as after business hours. Only

dustless methods of cleaning floors, walls

and ceiling shall be used such as vacuum

cleaning, wet cleaning, treated dust mops or

the use of dust arresting sweeping

compounds with brooms.

From 1982 through the date of the incident, representatives

of the State of Missouri inspected National's stores to see if

National complied with the regulations.

National also had tocomply with Section 7-301, page 44, of

the “Retail Food Stores Sanitation Code promulgated by United

States Department of Health and Human Services,” which

provides:

Cleaning of floors, walls and ceilings shall be

done as often...

Summers was responsible for National starting to use the

Pioneer Eclipse Program throughout its stores. The means of

application of the PEP was the same as compared to what

National was using with its own people before the changeover.

Between 1982 and 1984, National essentially used the same

program as PEP to clean its floors, including the type of

chemicals and methods of application. The company through

which it purchased the chemicals/products was Dart Research.

Prior to using PEP, National's employees used a propane buffer

in some of its stores, and National's employees used auto

scrubbers, dust mops, and wet mops to clean the floors of its

stores. National did not have to make a change in the purchasing

of any equipment it already had to use for the Dart Research

10

chemicals when it adopted and switched to the PEP. Summers

identified the form the store managers used to order the floor

cleaning supplies and products on the date of the incident, and

explained the procedure the managers used to order said items

directly from Smith-Scharff. In 1987, no difference existed

between the supplies, products, and equipment National

supplied to the Natural Bridge store as compared to the other

stores, and no difference existed (other than brand name)

between the supplies, products and equipment National ordered

in 1987 as compared to when using Dart Research. National

provided to all the stores cleaning items, such as brooms, mop

buckets, wringers for the mop buckets, rayon and cotton mops

with handles, various pads for the auto scrubber, edging tools,

doodle bugs or octopus pads and handles, and the PEP neutral

cleaner, stripper, floor finish or restoration to all stores. In 1987,

National owned auto scrubbers that were stored on the stores’

premises. In the eleven stores in which National employees

cleaned the floors overnight the National employees used

buffers owned by National.

During the day, National’s porters would sweep, dust mop

and wet mop any spills or breakages. With respect to cleaning the

floors during the day, the procedure at the Natural Bridge store

was the same as in all other National stores.

Summers is the National representative that contracted with

BBI to clean the floors of the Natural Bridge store overnight.

National required BBI to use the PEP. BBI could not have

decided on its own to use another program. National provided

everything necessary, except the buffer, the pads and fuel for the

buffer, and maintenance of the buffer. Any managerial employee

of National had the authority to instruct the BBI employees, and

request that BBI replace an employee.

Harold Meyer was manager of the Natural Bridge store and

Se

11

was on duty at the time of the incident. BBI was the cleaning

service that performed work at the Natural Bridge store after

store the store was closed to the public. BBI would call the

manager to tell him if a different employee was arriving to the

Natural Bridge store to perform the services. The usual custom

was to have one night man from BBI. The one “night man” from

BBI, at the Natural Bridge store, was Bass on the date of the

incident.

The stock clerks would also work at the Natural Bridge store

overnight, and three stock clerks were working the night of the

incident. Immediately before the incident occurred, Bass was

pushing a broom down the dairy aisle. There was no one else

present at the store from BBI. Bass was there to clean the floor.

Meyer described the procedure Bass followed for the daily

maintenance. This was the procedure Bass was to follow every

time he was at the Natural Bridge store. If Meyer saw an area that

was being neglected, Meyer informed Art Seise. Everyday,

Meyer knew what was going on with the floor. It was common for

Meyer to instruct the BBI person regarding certain tasks Meyer

wanted done, i.e., cleaning areas of the floor where an item had

spilled that would stain the floor, pointing out floor corners that

were dirty, Meyer testified he “was always on them pointing out

certain areas for cleaning.” Meyer did not give Bass any

instructions that evening regarding the floor cleaning.

Before this incident, Meyer had the right to tell a BBI

employee to the leave the store. Meyer had an occasion to tell a

BBI employee to leave. Meyer would tell Art Seise if he did not

want a certain person from BBI returning to the store.

Pursuant to the contract with BBI, BBI was toclean the floor

of the store on a “regular daily basis.” BBI normally sent one

person to the Natural Bridge store. National owned an auto

scrubber that it kept on the premises.

12

Meyer kept dust mops, brooms, wet mops, and other forms

of cleaning materials stored on the premises of the Natural

Bridge store. National’s employees on duty during the day would

sweep, dust mop and wet mop the floor of the Natural Bridge

store “all the time.”

During the eight years Meyer was manager of the O’Fallon

National store, and during the time Meyer was manager of the

Natural Bridge National store, Meyer had National employees

who cleaned and swept the floors. During the time Meyer was

manager, CO-manager or assistant manager at various National

stores, Meyer had locations in which, after closing but before

opening the store to the public, the floors would be waxed,

stripped, cleaned every night, and mopped by National

employees. The employees would also use the scrubbers. At

other times at other stores, the overnight floor cleaning was

contracted out to a janitorial service. From the time Meyer

became Assistant Manager to the date of the incident, over eight

years, the floors at the various National stores Meyer worked at

were always cleaned the same way whether a National employee

oracontract janitorial service preformed the cleaning, including

the procedures and types of materials utilized.

REASONS FOR DENYING THE WRIT

This Court refuses to review judgments rendered by the

highest court of a state unless a federal question has been both

raised and decided in the state court below. Yee v. City of

Escondido, 503 U.S. 519, 523-33 (1992) (in reviewing

judgments of the state courts under 28 U.S.C § 1257, the Court

will refuse to consider claims that were not raised or addressed

below). See also Beck v. Washington, 369 U.S. 541, 549-53

(1962) (because petitioner failed to argue equal protection in

state court, question was not before this Court); Herndon v.

Georgia, 295 U.S. 441, 443 (1935) (failure to follow appellate

channels provided by state court is fatal).

13

Missouri law is consistent with federal law: arguments not

presented to the trial court cannot be presented in the court of

appeals or before the Missouri Supreme Court.

In this Court, for the first time, petitioners argue that they

have been denied their Seventh Amendment right to trial by jury

and Fourteenth Amendment right of due process. Petitioners

never cited the Seventh Amendment nor the Fourteenth

Amendment to the trial court, the Missouri court of appeals nor

to the Missouri Supreme Court. Their only cite, to the above

amendments, was in their December 6, 1995 motion for

rehearing to the Missouri Supreme Court, after its final (en banc)

decision of November 21, 1995.

Petitioners’ petition for writ of certiorari to this Court

attempts to set out two (2) reasons this Court should grant its writ

of certiorari:

(1) THE UNITED STATES SUPREME

COURT IS VIGILANT TO EXERCISE ITS

POWERS OF REVIEW IN ANY CASE

WHERE IT APPEARS THAT THE

LITIGANTS HAVE BEEN IMPROPERLY

DEPRIVED OF THEIR RIGHT TOAJURY

DETERMINATION AND SUBSTANTIVE

AND PROCEDURAL DUE PROCESS.

(2) THE MISSOURI SUPREME COURT

SHOULD HAVE GIVEN ITS DECISION

PROSPECTIVE-ONLY APPLICATION TO

AVERT INJUSTICE, AND PROCEDURAL

DUE PROCESS; AND ITS OPINION IS IN

CONFLICT WITH THIS COURT'S

THREE-FACTOR TEST ANNOUNCED IN

CHEVRON OILCO. V. HUDSON...

14

I,

THE MISSOURI SUPREME COURT DID NOT

IMPROPERLY DEPRIVE THE PETITIONERS OF THEIR

RIGHT TOAJURY TRIAL.

Petitioners first point “THE UNITED STATES

SUPREME COURT IS VIGILANT TO EXERCISE I7TS

POWERS OF REVIEW IN ANY CASE WHERE IT

APPEARS THAT THE LITIGANTS HAVE BEEN

IMPROPERLY DEPRIVED OF THEIR RIGHT TO A

JURY DETERMINATION AND SUBSTANTIVE AND

PROCEDURAL DUE PROCESS.” This is a misplaced “last

gasp” attempt to raise a “red herring” issue to “postpone the

inevitable.”

No constitutional issue is preserved for appeal unless it is

raised at the earliest possible time. Yee v. City of Escondido, 503

U.S. 519, 523-33 (1992) (in reviewing judgments of the state

courts under 28 U.S.C § 1257, the Court will refuse to consider

claims that were not raised or addressed below). See also Beck v.

Washington, 369 U.S. 541, 549-53 (1962) (because petitioner

failed to argue equal protection in state court, question was not

before this Court); Herndon v. Georgia, 295 U.S. 441, 443

(1935) (failure to follow appellate channels provided by state

court is fatal); Leahy v. Leahy, 858 S.W.2d 221 (Mo. banc 1993)

Petitioners’ “earliest possible time” to have raised any

constitutional issues would have been at the time they filed their

notice of appeal from the trial judge’s granting of the JNOV.

Petitioners briefed this matter in the Missouri Court of

Appeals, Eastern District and did not raise any constitutional

issues.

oa wT, —- ee al

15

Petitioners, after transfer was granted to the Missouri

Supreme Court, rebriefed this matter and raised no

constitutional issues.

The first time petitioners raised any constitutional issues

was in their Motion for Rehearing after the Missouri Supreme

Court’s opinion was handed down. Clearly, petitioners have

waived any constitutional questions. Killian v. J & J Installers,

Inc., 802 S.W.2d 158 (Mo. banc 1991).

These constitutional issues, however, have already been

decided. The Missouri Supreme Court was faced with the

constitutional issues petitioners now wish to “revisit.” In

Kemper v. Glick, 39 S.W.2d 330, (Mo. banc 1934), cert. denied,

52S. Ct. 29,284 U.S. 649, 76 L. Ed. 551, the Missouri Supreme

Court held that the constitutional question(s) whether the

Missouri Workers’ Compensation Act takes away common-law

rights of action and defenses can only arise where there were

constitutional guarantees of such rights and would be violated by

their infringement.

Il.

THE MISSOURI SUPREME COURT SHOULD NOT

AND COULD NOT GIVE ITS_ DECISION

PROSPECTIVE-ONLY APPLICATION FOR TO DO SO

WOULD HAVE DEPRIVED THE RESPONDENT OF ITS

PROCEDURAL DUE PROCESS, SINCE ITS OPINION

DOES NOT ESTABLISH A “NEW PRINCIPAL OF LAW.”

Petitioners’ second point, “THE MISSOURI SUPREME

COURT SHOULD HAVE GIVEN ITS DECISION

PROSPECTIVE-ONLY APPLICATION TO INVERT

INJUSTICE, AND PROCEDURAL DUE PROCESS;.. .”, is

without merit. The Missouri Supreme Court's ruling (1) does not

16

establish a new principal of law by overruling clear past

precedent; (2) the purpose and effect of the Missouri Supreme

Court’s decision would not be retarded by its retroactive

application; and (3) there are no interests that must be balanced

since there is nochange in the law. Petitioners citing Sumners v.

Sumners, 701 S.W. 2d 720, 722-23 (Mo. banc 1985) has no

application to this case. Sumners, supra, sets forth the test to

determine whether an overruling decision is to have

retrospective effect. “At the threshold, however, before the

retrospective application of the decision becomes an issue, it

must be determined that it ‘establish[es] a new principle of law

... by overruling clear past precedent.’ ” Jd. at 724, quoting

Chevron Oil Co. v. Huson, 404 U.S. 97, 106,92 S. Ct. 349, 355,

30 L. Ed. 2d 296 (1971); Thurston v. Ballinger, 884 S.W. 2d 22,

25 (Mo. App. 1994).

Not to diminish the magnitude of or to take anything away

from the Missouri Supreme Court’s opinion in this case, itcannot

be said to “establish[es] anew principle of law. . . by overruling

clear past precedent.”

The opinion cites a number of Missouri court decisions,

both of the Missouri Supreme Court as well as opinions of the

Missouri court of appeals, which have arrived at the same

conclusion as to what is “usual business” and “usual course of

business” as used in Missouri R.S. § 287.040.1 (1994). (See II, C

pp. 6 to 9 of the opinion, petitioners’ Appendix D).

17

CONCLUSION

The writ of certiorari should be denied. The Missouri

Supreme Court’s opinion correctly interpreted Missouri law, as

set forth in Missouri R.S. § 287.040.1, et seg. (1994) and as set

forth in earlier opinions by that court, as well as by the various

decisions of the Missouri court of appeals, e.g., McGuire v.

Tenneco, 756S.W.2d 532 (Mo. banc 1988), and properly applied

that law to the facts of the case at hand. The decision “made no

new law.” The opinion did not deprive the petitioners of any

guaranteed constitutional rights under the United States

Constitution or the Constitution of the State of Missouri.

Respectfully submitted,

RONALD C. WILLENBROCK

Counsel of Record

AMELUNG, WULFF

& WILLENBROCK, P.C.

Attorneys for Respondent

515 Olive Street

Suite 1700

St. Louis, Missouri 63101

(314) 436-6757