GAVAN v. Bituminous Casualty Corporation

RICHARD B. TEITELMAN, Judge,

dissenting.

The only issue in this case is whether Bryan Gavan was a “temporary worker” eligible for insurance coverage for his serious and permanent injuries. There is no dispute Gavan temporarily worked for the employer on an as-needed basis. However, the majority concludes that Gavan is not a temporary worker solely because he was not referred to the employer by a third party. This conclusion is not compelled by the language of the insurance policy or existing Missouri precedent. Therefore, I respectfully dissent.

The insurance policy defines the term “temporary worker” as “a person who is furnished, to [the employer] to substitute for a permanent employee on leave or to meet seasonal or short-term workload conditions.” The term “furnished to” is not defined in the policy. When interpreting insurance policy language, courts give a term its ordinary meaning unless it plainly appears that a technical meaning was intended. Farmland Indus., Inc. v. Republic Ins. Co., 941 S.W.2d 505, 508 (Mo. banc 1997).

The word “furnish” means “[t]o provide or supply with what is needed, useful or desirable.” Webster’s Third New INTERNATIONAL DICTIONARY 923 (1986). The ordinary meaning of the term “furnished to” does not necessarily imply that the worker must be referred to the employer by a third party. There is nothing in the plain language of the policy providing that a worker cannot furnish himself or herself to work. The term is subject to alternate plausible interpretations and, as a result, is ambiguous. This ambiguity has led Missouri courts to hold that the term “furnished to” in a virtually identical insurance policy does not require the worker to be referred to the employer by a third party. See, American Family Mutual Ins. Co., v. As One, Inc., 189 S.W.3d 194, 198-99 (Mo.App.2006).

This conclusion is further supported by assessing the definition of “temporary worker” in conjunction with the definition of “leased worker.” The policy’s definition of a “leased worker” is “a person leased to you by a labor leasing firm....” Unlike the definition of “temporary worker,” which imposes no third party requirement, the definition of “leased worker” expressly contemplates the involvement of a third party in providing the worker to the employer. Where a term is used in one clause of a policy, its absence in another clause is significant. Reese v. U.S. Fire Ins. Co., 173 S.W.3d 287, 299 (Mo.App.2005); see also, Otto v. Young, 227 Mo. 193, 127 S.W. 9 (Mo.1910). The absence of any requirement that the “temporary worker” be furnished by a third party is significant and further supports the contention that a person may furnish himself or herself to the employer. If the term “furnished to” requires a third-party referral, the policy should simply state that. The policy at issue in this case does not do so.

The majority’s interpretation of the contract is also problematic because it focuses exclusively on the term “furnished to.” The definition of “temporary worker” does not end there. A “temporary worker” is also one that serves as a “substitute for a permanent employee on leave or to meet seasonal or short-term workload conditions.” When the term “furnished to” is interpreted in the context of the entire phrase, it is reasonable to conclude that the appropriate focus is on the reason the person is going to work for the employer and not who, if anyone, refers the person to the employer. That is, a worker is considered temporary because he or she is substituting “for a permanent employee on leave or to meet seasonal or short-term workload conditions.” The majority’s unnecessarily restrictive interpretation of and focus on the term “furnished to” results in covering some workers but not others based upon how they procured the temporary job rather than on the temporary nature of their employment. Under the majority’s reading, a short-term worker who responds to an employment advertisement is excluded from coverage while a short-term worker who is “furnished” in some manner by a third party is covered. The logic of this distinction is not consistent with an ordinary understanding of the term “temporary worker.”

I would reverse the circuit court’s grant of summary judgment in favor of the defendant.