A Missouri Supreme Court case involving a pregnant state employee who was struck and killed in a work zone is drawing attention to the intersection between “personhood” laws – which say life begins at conception – and workers compensation exclusivity.  

The state’s highest court is weighing whether to permit a wrongful death lawsuit on behalf of a deceased fetus to proceed or if the death of both the Department of Transportation employee and the fetus she was carrying should be covered exclusively by workers comp, as the employer in Tonya Musskopf and Austin Jarvis v. Missouri Highways and Transportation Commission et al., is arguing.

Six months pregnant at the time, DOT maintenance worker Kaitlyn Anderson was struck and killed by an incapacitated motorist whose vehicle veered into an active work zone in November 2021. The driver later died unrelated to the accident.

Tonya Musskopf, Ms. Anderson’s mother, and Austin Jarvis, Ms. Anderson’s partner, sued the Missouri Highways and Transportation Commission, along with some of Ms. Anderson’s supervisors.    

If the fetus died because of the workplace accident he “was, by definition, an ‘employee’ of the Missouri Department of Transportation,” triggering workers comp exclusivity, “for the same reasons as those claims are barred as to the death of Kaitlyn Anderson,” lawyers for the transportation commission wrote in court papers responding to the suit.

The filing was in response to a suit filed against the agency by the deceased driver’s estate. DOT lawyers argue the driver’s estate is barred from suing the state, as is Ms. Anderson’s family. The driver’s estate had filed a cross-claim against the DOT for its contribution in the two deaths, claiming the DOT created a dangerous condition that led to the vehicle accident.

One attorney not involved with the case said it’s “absurd” to make the argument that a fetus can be considered an employee for purposes of workers comp exclusivity.

“The fetus was never paid. The fetus never performed any work. And there was no employment contract,” said Brad Young, a partner with Chesterfield, Missouri-based Harris Dowell Fisher & Young L.C.

The case has spurred House Bill 2483, which would clarify that an “unborn child” killed during work-related accidents wouldn’t be subject to workers comp exclusivity.

A DOT spokeswoman said the agency will not comment on pending litigation but did provide a letter from its counsel to a state representative who sought clarification on whether the state was arguing the unborn baby was an “employee.”

In the letter, attorney Theresa Otto of Baty Otto Scheer P.C., who represents the transportation commission, states that the defendants are not claiming that the fetus was an employee.

“The Commission argued that because the unborn child is a dependent of Ms. Anderson, the language of the statute precluded additional recovery,” Ms. Otto wrote, noting that statutory language classifies dependents similarly to employees.  

While DOT lawyers appear to be raising comp exclusivity for the fetus, another attorney involved in the case is focusing on a different legal argument.

Matt Noce, a defense attorney with St. Louis-based Reichardt Noce & Young LLC who represents Kristina Jordan, one of the work supervisors named as a co-defendant in the suit against the DOT, said the only way a civil claim could proceed against a coworker – in this case, a work supervisor — is if the individual engaged in a negligent act that “purposefully and dangerously caused or increased the risk of injury.”

Ms. Jordan and the other supervisors were not at the work site on the day of the accident, he said.

Mr. Noce sought to have the case against his client dismissed because the supervisors are entitled to immunity under the state’s public employer doctrine.

Meanwhile, the plaintiff’s lawyer says the transportation commission isn’t entitled to immunity from suit because it created a dangerous condition by not placing a protective vehicle in the area where Ms. Anderson was working, and that the wrongful death claim on behalf of the unborn baby should be permitted.

The case had been scheduled for trial in early March, but the high court stayed the proceedings in February, according to court papers. It recently held oral arguments and is weighing the matter.