2018 WL 2011524

NOTICE: THIS OPINION HAS NOT BEEN RELEASED FOR PUBLICATION IN THE PERMANENT LAW REPORTS. IT MAY BE SUBJECT TO A MOTION FOR REHEARING OR TRANSFER. IT MAY BE MODIFIED, SUPERSEDED OR WITHDRAWN.
Missouri Court of Appeals,
Western District.
Roger C. ROSS, Respondent,
v.
JESCHKE AG SERVICE, LLC, Appellant.
WD 80789
|
Filed: May 1, 2018
APPEAL FROM THE CIRCUIT COURT OF JACKSON COUNTY, THE HONORABLE KEVIN D. HARRELL, JUDGE
Attorneys and Law Firms
William J. Foland, Joseph J. Roger and Amy L. Coopman, Kansas City for appellant.
Louis C. Accurso, Clayton E. Gillette, Burton Haigh and Andrew H. McCue, Kansas City for respondent.
Before Division One: Lisa White Hardwick, Presiding Judge, Cynthia L. Martin and Anthony Rex Gabbert, Judges
Opinion
Lisa White Hardwick, Judge

*1 Jeschke Ag Service, LLC, (“Jeschke”) appeals the circuit court’s judgment awarding Roger Ross $2,535,000 in economic damages, $250,000 in non-economic damages, and $750,000 in punitive damages for his negligence claim. Jeschke contends the court erred in denying its motion to dismiss for lack of personal jurisdiction, submitting the punitive damages instruction, and denying its motion for new trial because the jury improperly rendered a quotient verdict. For reasons explained herein, we affirm.

FACTUAL AND PROCEDURAL HISTORY
On the morning of March 19, 2014, Donald Shaw, acting in the course and scope of his employment with Jeschke, drove a tractor-trailer rig to St. Joseph to pick up a load of fertilizer. Once the fertilizer was loaded onto Shaw’s trailer, the tractor-trailer weighed 81,200 pounds.

After Shaw picked up the fertilizer, he proceeded to drive back to Jeschke’s facility in Troy, Kansas. As he drove north on Highway K-7 in Kansas, he rolled up behind Ross, who was also heading north on Highway K-7. Ross was driving his farm tractor with his flashers activated.

The stretch of roadway on which Ross and Shaw were traveling was in a marked no-passing zone. Shaw was familiar with the area because he had driven it several times in the past. He saw the “No Passing” sign as well as the solid yellow line on his side of the road. He also understood that it was dangerous to pass someone in a no-passing zone. Nevertheless, Shaw pulled into the southbound lane of Highway K-7 on Ross’s left side just as Ross was attempting to turn left onto an intersecting street.

Shaw struck Ross as Ross was turning. The force of the impact caused Ross to be ejected from the tractor. The tractor eventually came to rest in a yard, while Shaw’s tractor-trailer entered a ditch and came to rest in a field.

Ross was transported from the scene to the hospital. He suffered serious injuries, including brain damage. Ross does not recall anything about the accident. Shaw was not injured.

Ross and his wife filed a petition for actual and punitive damages against Jeschke and Shaw in the Circuit Court of Jackson County, Missouri. While the case was pending, the court determined that Kansas substantive law should be applied. Ross subsequently filed an amended petition excluding his wife’s claim.

Before the jury trial began, Ross dismissed his claims against Shaw without prejudice. At the conclusion of the trial, the jury assessed 65% of the fault for the accident to Jeschke and 35% to Ross. The jury determined that Ross’s past and future economic damages were $3.9 million and his past and future non-economic damages were $2.4 million. The jury also found that Jeschke was liable for punitive damages. The court indicated that it would schedule a hearing at a later date to determine the amount of punitive damages.

A couple of months later, the court heard additional evidence regarding punitive damages and then entered final judgment. After reducing the jury’s award by Ross’s percentage of fault and applying Kansas’s non-economic damages cap, the court awarded Ross $2,535,000 in economic damages and $250,000 in non-economic damages. The court also awarded Ross $750,000 in punitive damages. Jeschke appeals.

ANALYSIS
Point I—Personal Jurisdiction
*2 In Point I, Jeschke contends the court erred in denying its motion to dismiss for lack of personal jurisdiction. Whether there is sufficient evidence to make a prima facie showing of personal jurisdiction is a question of law that this court reviews de novo. Bryant v. Smith Interior Design Group, Inc., 310 S.W.3d 227, 231 (Mo. banc 2010).

After Ross filed his petition in Jackson County, Jeschke filed a motion to dismiss for lack of personal jurisdiction. In its motion, Jeschke alleged that it was not subject to personal jurisdiction in Missouri because the accident occurred in Kansas; Ross and Shaw are both Kansas residents; and Jeschke is a Kansas LLC that is not licensed to do business in Missouri, does not have a registered agent in Missouri, and does not have an office for the transaction of business in Missouri. The court denied Jeschke’s motion. During trial, Jeschke renewed its challenge to the court’s assertion of personal jurisdiction in its motions for directed verdict at the close of plaintiff’s evidence and at the close of all the evidence. The court denied those motions.

After the jury trial, Jeschke filed a motion for new trial or to amend the judgment. In this motion, however, Jeschke did not allege that the court lacked personal jurisdiction over it. Rule 78.07(a) requires that all allegations of error, except those involving questions of subject matter jurisdiction, questions presented in motions for judgment notwithstanding the verdict, and questions relating to motions for directed verdict that are granted at trial, must be included in a motion for new trial to be preserved for appellate review.

Jeschke did file a motion for judgment notwithstanding the verdict that included a challenge to the court’s exercise of personal jurisdiction. However, Jeschke filed this motion, along with a motion for new trial and a motion to amend the judgment, before the court held its hearing on punitive damages and entered its final judgment. The court struck all of these motions as premature and specifically stated that the motions would not be considered by the court. Although Jeschke filed another motion for new trial or, alternatively, to amend the judgment after the court entered its final judgment, Jeschke did not file another motion for judgment notwithstanding the verdict.

Hence, Jeschke’s challenge to the court’s exercise of personal jurisdiction must have been included in its motion for new trial to be preserved for our review. Williams v. Thompson, 489 S.W.3d 823, 828 (Mo. App. 2015). Jeschke not only failed to include its claim that the court lacked personal jurisdiction in its motion for new trial, but Jeschke stated in the motion that the court did, in fact, have personal jurisdiction. In a footnote on the first page of its motion for new trial, Jeschke stated, “Brent Jeschke, one of Jeschke’s owners, and Shaw were personally served with process in Missouri, so this Court has personal jurisdiction to hear this Kansas case.” (Emphasis added.) “[B]ecause personal jurisdiction is an individual right, a defendant may waive jurisdictional objections by consenting to personal jurisdiction.” State ex rel. Norfolk S. Railway Co. v. Dolan, 512 S.W.3d 41, 46 (Mo. banc 2017). Jeschke waived its claim that the court lacked personal jurisdiction.1 Point I is denied.

Point II—Punitive Damages
*3 In Point II, Jeschke challenges the circuit court’s award of punitive damages on several grounds.2 First, Jeschke contends the court erred in submitting prejudicially erroneous jury instructions that misdirected, misled, or confused the jury to award punitive damages during the compensatory damages phase. Specifically, Jeschke argues that the instructions failed to apprise the jury of the bifurcated nature of the trial, i.e., that there would be a second stage of the trial during which, pursuant to Kansas law, the court would decide the amount of punitive damages to award. Jeschke also argues that the instructions failed to sufficiently explain that compensatory damages do not include punitive damages.

As Ross correctly points out, Jeschke did not object to the jury instructions on any of these bases at trial. Rule 70.03 provides that “[n]o party may assign as error the giving or failure to give instructions unless that party objects thereto before the jury retires to consider its verdict, stating distinctly the matter objected to and the grounds of the objection.” “Timely objections [to an instruction] are required as a condition precedent to appellate review in order to afford the trial court an opportunity to correct any mistakes immediately and inexpensively without risking the delay and expense of an appeal and a retrial.” Howard v. City of Kansas City, 332 S.W.3d 772, 790 (Mo. banc 2011) (citation omitted). Because Jeschke failed to object to the instructions on these grounds at trial, it has not preserved these claims of error for appellate review. Id.

Second, Jeschke contends the court erred in denying its motion for a directed verdict at the close of all the evidence because Ross failed to make a submissible claim for punitive damages. In response, Ross asserts that Jeschke failed to preserve any challenge to the submissibility of his punitive damages claim by not raising it in a motion for judgment notwithstanding the verdict. To preserve a challenge to the submissibility of the plaintiff’s case, the defendant must first include it as a claim of error in a motion for directed verdict at the close of the plaintiff’s evidence, renew the claim of error in a motion for directed verdict at the close of all the evidence, and then include the claim of error in a timely motion for judgment notwithstanding the verdict filed after the court enters its judgment. Newsome v. Kansas City, MO Sch. Dist., 520 S.W.3d 769, 775 n.2 (Mo. banc 2017); Sanders v. Ahmed, 364 S.W.3d 195, 207-08 (Mo. banc 2012); Rule 72.01(a)-(b).

Jeschke challenged the submissibility of Ross’s punitive damages claim in its motions for directed verdict filed at the close of Ross’s case and at the close of all the evidence. Jeschke asserts that it also included the claim of error in its motion for judgment notwithstanding the verdict, which it filed before the court held its hearing on punitive damages and entered its final judgment. As we stated supra, however, the court struck Jeschke’s motion for judgment notwithstanding the verdict as premature and advised the parties that the motion would not be considered by the court. In its reply brief, Jeschke relies solely on this stricken motion for judgment notwithstanding the verdict to support its assertion that its challenge to the submissibility of Ross’s punitive damages claim was preserved. Jeschke does not acknowledge that the court struck the motion or that the court specifically stated that the motion would not be considered.

*4 Jeschke did not file another motion for judgment notwithstanding the verdict after the court entered its final judgment. Therefore, pursuant to Newsome and Sanders, Jeschke failed to preserve its challenge to the submissibility of Ross’s punitive damages claim by not including it in a properly-filed motion for judgment notwithstanding the verdict.

Alleging the same deficiencies in the evidence concerning punitive damages as it alleged to support its submissibility challenge, Jeschke also argues in this point that the court erred in submitting the punitive damages instruction to the jury because the evidence was insufficient to support it. Although labeled as instructional error, this is another challenge to the submissibility of Ross’s punitive damages claim. As such, it must have been preserved pursuant to Rule 72.01 by including it in a motion for judgment notwithstanding the verdict. See Howard, 332 S.W.3d at 789-91 (stating that, to the extent that a point relied on alleging that the court erred in instructing the jury on future damages because future damages were not supported by the evidence challenged submissibility, the claim of error was not preserved, as the defendant had not argued against the submissibility of future damages in a motion for directed verdict pursuant to Rule 72.01(a) ). Point II is denied.

Point III—Alleged Juror Misconduct
In Point III, Jeschke alleges the circuit court erred in denying its motion for new trial based on juror misconduct. We will not disturb the court’s ruling on such a motion unless we find that the court abused its discretion. Smotherman v. Cass Reg’l Med. Ctr., 499 S.W.3d 709, 712 (Mo. banc 2016). An abuse of discretion occurs when the ruling “is clearly against the logic of the circumstances then before the court and is so arbitrary and unreasonable as to shock the sense of justice and indicate a lack of careful consideration.” Id.

Jeschke alleges the jurors committed misconduct by rendering a quotient verdict. “The law in Missouri respecting quotient verdicts is well settled.” Jones v. Midwest Pre Cote Co., 412 S.W.2d 468, 471 (Mo. 1967). A quotient verdict, which is “a verdict arrived at by a prearranged agreement among the jurors to be bound by the result of the averaging of the individual estimate of the jurors, amounts to misconduct on the part of the jury and such a verdict should not be permitted to stand.” Id. “[T]o establish a verdict as a quotient verdict it must be shown that there was a prearranged agreement among the jurors to accept the unknown and unascertained quotient as their verdict.” Id. (emphasis added). Indeed, prearrangement is “the central element of the quotient verdict.” Boquist v. Montgomery Ward & Co., 516 S.W.2d 769, 777 (Mo. App. 1974), overruled on other grounds by Sanders v. Daniel Int’l Corp., 682 S.W.2d 803 (Mo. banc 1984). “[T]he presumption is that there was no such prearrangement among the jurors.” Jones, 412 S.W.2d at 471. “[B]efore a verdict can be deemed a quotient verdict there must be strong evidence that prior to the calculations ultimately resulting in the award the jury agreed to be bound by the total.” Boquist, 516 S.W.2d at 778. Furthermore, “if the jurors have not bound themselves beforehand to accept the unascertained quotient as their verdict, but after the quotient is ascertained it is then adopted as their verdict, the fact that they used that method of reaching an agreement will not invalidate their verdict.” Jones, 412 S.W.2d at 471.

*5 To support its claim that the jurors in this case delivered a prearranged quotient verdict, Jeschke relies on the affidavit and testimony of Charles Cooper, the jury foreperson. In his affidavit, Cooper stated that, during deliberations, the jurors averaged their opinions on the respective parties’ fault and the amount of damages by setting out the numbers and dividing them by the number of jurors. In a hearing that the court held regarding the alleged juror misconduct, Cooper testified that what he stated in his affidavit was accurate. He added that, before arriving at percentages of fault, the jurors “discussed first what the actual fault was, trying to stay in compliance with the guidance provided to [them] from the court.” Cooper repeatedly denied that the jurors had a prearranged agreement to reach a verdict by totaling each juror’s opinion of percentages of fault and damages and dividing those numbers by 12. When Jeschke’s counsel asked him if the jurors had this type of agreement “at the outset,” Cooper responded:
[W]hen you make the statement an agreement before, there was no agreement. What we read was the jury instructions that we had before us. That’s what we attempted to apply to the process. We didn’t sit up and go—or to the best of my knowledge, we’re simply going to add everything up, average it out, and give what we’re going to give.

Later, Cooper again explained the process the jurors followed in their deliberations and reiterated that they had no prearranged agreement to render a quotient verdict:
It’s as if we are to absorb the factual evidence that we have been presented with and those are the evidence we were supposed to take, and we go up in the deliberation room, and at that point, then we start to expound on those.
So there was no preconceived conversing, conversations that indicated by any means that we were going to do something a certain way, i.e., we’re going to set this thing up and we’re going to do the percentages and what have you.

Cooper’s affidavit and testimony showed that the jurors in this case did not have a prearranged agreement to be bound by the average of their opinions of fault percentages or damages amounts. That they may have used this method to arrive at a verdict after discussing the evidence and applying the instructions to the evidence does not invalidate their verdict. Id. Because Jeschke failed to present strong evidence that the jurors had a prearranged agreement to be bound by a quotient verdict, the circuit court did not abuse its discretion in denying Jeschke’s motion for new trial. Point III is denied.

CONCLUSION
We affirm the circuit court’s judgment.

All Concur.
All Citations
— S.W.3d —-, 2018 WL 2011524

Footnotes

1
Citing Bueneman v. Zykan, 52 S.W.3d 49, 58-59 (Mo. App. 2001), Jeschke argues that a judgment issued with no personal jurisdiction is void ab initio and remains forever void; hence, it can be attacked at any time. Unlike in this case, however, Bueneman involved a default judgment, and the defendants never waived their jurisdictional objections by consenting to personal jurisdiction.

2
We agree with Ross that Jeschke’s Point II is multifarious because it contains more than one basis for reversal. Peters v. Johns, 489 S.W.3d 262, 268 n.8 (Mo. banc 2016). “Multifarious points relied on are noncompliant with Rule 84.04(d) and preserve nothing for review.” Id. Nevertheless, we exercise our discretion to review this defective point ex gratia. Id.

Ramsbacher v. Jim Palmer Trucking
Supreme Court of Montana
March 28, 2018, Argued and Submitted; May 8, 2018, Decided
DA 17-0502

Reporter
2018 MT 118 *; 391 Mont. 298 **; 2018 Mont. LEXIS 143 ***; 2018 WL 2111891
DAVID RAMSBACHER, Plaintiff and Appellant, v. JIM PALMER TRUCKING, Defendant and Appellee.
Subsequent History: Released for Publication May 24, 2018.
Prior History: [***1] APPEAL FROM: District Court of the Fourth Judicial District, In and For the County of Missoula, Cause No. DV 14-457. Honorable Karen S. Townsend, Presiding Judge.

[**299] Justice Ingrid Gustafson delivered the Opinion of the Court.
[*P1] David Ramsbacher (Ramsbacher) appeals from an order of the Fourth Judicial District Court, Missoula County, granting summary judgment in favor of Jim Palmer Trucking (JPT). We affirm.
[*P2] We restate the issue on appeal [***2] as follows:
Does § 39-8-207(8)(b)(i), MCA, which extends the exclusive remedy of the Workers’ Compensation Act from a Professional Employer Organization to its client, violate Article II, Section 16, of the Montana Constitution by depriving an injured worker of full legal redress?

FACTUAL AND PROCEDURAL BACKGROUND
[*P3] The controversy in this case arises from the interplay of Title 39, Ch. 8, MCA—known as the Montana Professional Employer Organizations and Groups Licensing Act (PEO Act)?and Article II, Section 16, of the Montana Constitution. Professional Employer Organizations (PEOs) hire employees and assign them to the PEO’s client businesses on an ongoing basis. PEOs are statutorily required to assume responsibility for the payment of employee wages, workers’ [**300] compensation premiums, payroll-related taxes, and employee benefits. Section 39-8-207(1)(b)(ii), MCA. However, Article II, Section 16, provides:
Courts of justice shall be open to every person, and speedy remedy afforded for every injury of person, property, or character. No person shall be deprived of this full legal redress for injury incurred in employment for which another person may be liable except as to fellow employees and his immediate employer who hired him if such immediate employer provides coverage under the Workmen’s Compensation Laws of this state. Right and justice shall be administered without [***3] sale, denial, or delay.
[*P4] Because Article II, Section 16, extends the exclusive remedy of the Workers’ Compensation Act (WCA) only to the “immediate employer . . . if such immediate employer provides coverage,” the question arises here as to whether, when a business contracts with a PEO who pays the workers’ compensation insurance premiums for certain employees, both the business and the PEO can be considered an “immediate employer” of those employees for the purpose of the exclusive remedy in accordance with § 39-8-207(8)(b)(i), MCA, or whether that provision conflicts with Article II, Section 16.
[*P5] In August 2010, JPT entered into a contract with Payroll Plus Corporation (PPC), which is a licensed PEO. Pursuant to the requirements of the PEO Act, the parties’ written contract governed the employment arrangement for certain job positions at JPT. Under the terms of the contract, JPT agreed not to hire employees directly. Instead, PPC hired the workers and “assigned” them to JPT. The contract designated PPC as the “administrative employer” of these employees. PPC agreed to assume responsibility for administrative duties, including payroll, payroll taxes, unemployment compensation, and workers’ compensation.
[*P6] The contract specified both PPC and JPT had some right [***4] of control over these employees. The contract stated, “PPC reserves a right of direction and control over Assigned Employees, as is necessary, to carry out its obligations as the administrative employer of such Assigned Employees, including the right to hire, terminate, discipline, and reassign Assigned Employees.” Regarding JPT, the contract stated:
Client Company shall, at all times, retain such direction and control over Assigned Employees as is necessary for Client Company to conduct Client Company’s business and without which Client Company would be unable to conduct Client Company’s business, discharge any fiduciary responsibility that [**301] it may have, or comply with any applicable licensure, regulatory, or statutory requirement for itself or its workers. Such authority maintained by Client Company shall include the right to accept or cancel the assignment of any Assigned Employee.
[*P7] As per the contractual agreement, and in accordance with the PEO Act, PPC purchased and maintained workers’ compensation insurance coverage for the employees it assigned to JPT. An appendix to the contract set forth a schedule which required JPT to pay PPC a percentage of each assigned employee’s gross [***5] compensation to compensate PPC for providing workers’ compensation coverage. The appendix further provided JPT would reimburse PPC for any issue fees for workers’ compensation policies, and the rate schedule would be adjusted for any increases or decreases of costs not under PPC’s control. The amounts were calculated based on JPT’s insurance rates—not PPC’s. Aside from the contractual arrangement with PPC, JPT did not purchase or maintain workers’ compensation insurance for its assigned employees.
[*P8] In September 2013, Ramsbacher applied to JPT for a truck-driving job. JPT found him qualified and referred him to PPC. PPC then hired Ramsbacher and assigned him to JPT. Ramsbacher’s assignment to JPT was not a temporary placement, but was intended to be on an ongoing basis. JPT provided Ramsbacher with its employee handbook and alcohol and controlled substance policies, trained him, supplied him with tools and equipment, directed his day-to-day job activities, and was responsible for conducting his annual employment review. If JPT was dissatisfied with Ramsbacher’s work, it could have refused his assignment from PPC, effectively terminating his employment at JPT.
[*P9] On December 23, 2013, Ramsbacher [***6] suffered a significant on-the-job injury while trying to repair a JPT truck that had broken down while he was driving it. Ramsbacher reported his injury to PPC, and PPC’s workers’ compensation insurer paid Ramsbacher’s benefits. Ramsbacher does not allege he has not received the benefits entitled to him under the WCA.
[*P10] In April 2014, Ramsbacher filed this suit against JPT, alleging his injuries occurred because of JPT’s failure to provide a safe workplace in accordance with § 50-71-201, MCA. JPT responded that Ramsbacher’s claim was barred by the exclusivity provision of the WCA.
[*P11] Ramsbacher then moved for summary judgment, arguing § 39-8-207(8)(b)(i), MCA, violates Article II, Section 16, by purporting to extend the exclusive remedy of the WCA to both the PEO and its client. [**302] JPT filed a cross-motion for summary judgment. The District Court granted summary judgment in JPT’s favor. Ramsbacher has appealed the District Court’s Order. Montana Trial Lawyers Association (MTLA), National Association of Professional Employer Organizations (NAPEO), and Avitus Group also filed briefs as amici curiae.
[*P12] On March 28, 2018, we heard oral argument from the parties and amici regarding the constitutionality of § 39-8-207(8)(b)(i), MCA.

STANDARD OF REVIEW
[*P13] HN1[ ] The constitutionality of a statute [***7] is a question of law, and this Court’s review of constitutional questions is plenary. Walters v. Flathead Prods., Inc., 2011 MT 45, ¶ 9, 359 Mont. 346, 249 P.3d 913 (citation omitted). The constitutionality of a statute is presumed unless it is unconstitutional beyond a reasonable doubt. Powell v. State Comp. Ins. Fund, 2000 MT 321, ¶ 13, 302 Mont. 518, 15 P.3d 877 (citations omitted). The party challenging the constitutionality of a statute bears the burden of proving the statute unconstitutional beyond a reasonable doubt. If any doubt exists, it must be resolved in favor of the statute. Goble v. Mont. State Fund, 2014 MT 99, ¶ 15, 374 Mont. 453, 325 P.3d 1211 (citations omitted).
[*P14] HN2[ ] The rights found in Article II, the Montana Constitution’s Declaration of Rights, are “fundamental,” meaning these rights are significant components of liberty, any infringement of which will trigger the highest level of scrutiny, and thus the highest level of protection by the courts. Walker v. State, 2003 MT 134, ¶ 74, 316 Mont. 103, 68 P.3d 872 (citations omitted). See also Walters, ¶ 46 (Nelson, J., dissenting). To withstand a strict-scrutiny analysis, the legislation must be justified by a compelling state interest and must be narrowly tailored to effectuate only that compelling interest. Gryczan v. State, 283 Mont. 433, 449, 942 P.2d 112, 122 (1997) (citation omitted).

DISCUSSION
[*P15] Does § 39-8-207(8)(b)(i), MCA, which extends the exclusive remedy of the Workers’ Compensation Act from a Professional Employer Organization to its client, violate Article II, Section 16, of the Montana Constitution by depriving an injured worker [***8] of full legal redress?
[*P16] HN3[ ] Article II, Section 16, of the Montana Constitution is self-executing and thus the Legislature cannot pass legislation that limits this fundamental right. Trankel v. Dep’t of Military Affairs, 282 Mont. 348, 362, 938 P.2d 614, 623 (1997) (citation omitted). Ramsbacher maintains the PEO Act limits this right by depriving injured workers of a fundamental right to a cause of action. He alleges § 39-8-207(8)(b)(i), MCA, [**303] deprives him of his constitutional right to seek redress for his injuries from JPT as a third party by impermissibly extending PPC’s exclusive remedy to JPT.
[*P17] HN4[ ] When a PEO uses a professional employer arrangement with a client, § 39-8-207(3)(a), MCA, deems both the PEO and the client as immediate employers for the purposes of Montana’s workers’ compensation laws. Section 39-8-207(8)(b)(i), MCA, states, “The professional employer organization or group is entitled, along with the client, to the exclusivity of the remedy under both the workers’ compensation and employers’ liability provisions of a workers’ compensation policy or plan of either party . . . .” Thus, pursuant to the language of the statute, if we determine § 39-8-207(8)(b)(i), MCA, is constitutional, the client businesses of PEOs, such as JPT, may be protected from third-party liability via the exclusive remedy provision of the WCA.
[*P18] If the PEO Act constitutionally permits JPT to be considered Ramsbacher’s “immediate [***9] employer who hired him,” and if JPT also provided Ramsbacher with workers’ compensation insurance coverage, the exclusive remedy found in Article II, Section 16, protects JPT from a third-party claim as mandated by § 39-8-207(8)(b)(i), MCA. This exclusive remedy arose in response to this Court’s decision in Ashcraft v. Mont. Power Co., 156 Mont. 368, 480 P.2d 812 (1971). In Ashcraft, the plaintiff worked for a construction company that Montana Power Company (MPC) hired. The contract between the construction company and MPC designated the construction company as an independent contractor, and the construction company agreed to carry workers’ compensation insurance on its employees, including the plaintiff. The plaintiff suffered injuries when a power pole, owned and maintained by MPC, fell while he was working on it. The construction company’s workers’ compensation insurer paid the workers’ compensation claim. The plaintiff then filed a negligence claim against MPC. This Court upheld the District Court’s dismissal of the negligence claim, holding when an employee’s immediate employer is an independent contractor who is required to carry workers’ compensation insurance, the general employer is immune from a third-party claim. Ashcraft, 156 Mont. at 369-71, 480 P.2d at 812-13. HN5[ ] The framers of the 1972 Constitution expressly overruled Ashcraft [***10] by granting immunity only to immediate employers who provide workers’ compensation coverage. Webb v. Mont. Masonry Co., 233 Mont. 198, 210, 761 P.2d 343, 351 (1988) (Weber, J., concurring).
[*P19] Ramsbacher argues this case is analogous to Ashcraft, and § 39-8-207(8)(b)(i), MCA, cannot pass constitutional muster because, like [**304] Ashcraft, it allows someone other than the injured worker’s immediate employer to benefit from the exclusive remedy. Amicus NAPEO counters that this case is factually distinguishable from Ashcraft because, unlike Ashcraft, the facts here would not extend exclusivity to anyone who had neither a role in the employment relationship nor the responsibility to oversee the injured worker.
[*P20] We agree the present facts are readily distinguishable from Ashcraft. There, this Court extended immunity to MPC, whose only relationship to the injured worker was that it contracted with the company who employed him to perform work for it. MPC was not Ashcraft’s de facto employer. It played no role in his hiring, nor did it take on any of the duties of an employer—neither administratively nor day-to-day. Here, unlike MPC, JPT participated in Ramsbacher’s hiring by first screening and approving him, and then sending him to PPC to complete the hiring process. After PPC assigned Ramsbacher [***11] to JPT, JPT took on employer-related duties, dictating Ramsbacher’s day-to-day job activities. JPT’s role in this case is readily distinguishable from MPC’s role in Ashcraft. We therefore disagree with Ramsbacher that these cases are analogous.
[*P21] HN6[ ] While Article II, Section 16, immunizes employers from tort claims, it also precludes limitations on injured workers’ claims against persons other than their employer or fellow employee. Trankel, 282 Mont. at 361, 938 P.2d at 622 (citations omitted). If an employer has met its obligation to obtain workers’ compensation insurance, the exclusive remedy protects the employer from liability claims by employees and third parties. Asurion Servs., LLC v. Mont. Ins. Guar. Ass’n, 2017 MT 140, ¶ 13, 387 Mont. 483, 396 P.3d 140. The employer receives the benefit of the exclusive remedy and the injured worker receives the benefit of a no-fault recovery—thus satisfying the quid pro quo. Walters, ¶ 12. Because of the quid pro quo, damages for negligence are not available against an employer. Sitzman v. Schumaker, 221 Mont. 304, 307, 718 P.2d 657, 659 (1986).
[*P22] Article II, Section 16, provides this exclusive remedy only to the immediate employer, and an employee may have a cause of action against a third party even if that third party pays the workers’ compensation claim. Webb, 233 Mont. at 210, 761 P.2d at 350. In Webb, a subcontractor failed to carry workers’ compensation insurance and, pursuant to § 39-71-405, MCA, the general contractor became liable for [***12] the worker’s claim. Webb, 233 Mont. at 200, 761 P.2d at 344. We held that even though the general contractor ultimately paid the workers’ compensation claim, it was not immune to a negligence action from the injured worker because it remained a third party and not the [**305] immediate employer. Webb, 233 Mont. at 201, 761 P.2d at 344. Thus, if JPT is anything other than Ramsbacher’s immediate employer here, it is not protected from third-party liability by the exclusive remedy.
[*P23] Ramsbacher argues PPC is his immediate employer. Ramsbacher points to § 39-8-207(1)(b)(i), MCA, which provides in part that the PEO reserves a right of direction and control over employees assigned to a client. Ramsbacher alleges Article II, Section 16, permits only one immediate employer, and PPC is his because it retained the right of control over his employment, pursuant to the PEO Act and the contract.
[*P24] JPT argues PPC’s statutory retention of the right of control does not obviate the fact that JPT actually controlled Ramsbacher’s work on a daily basis, and § 39-8-207(1)(b)(i), MCA, and the contract further provide that JPT retained “sufficient direction and control over employees necessary to conduct business . . . .” JPT contends it split employer duties with PPC: PPC undertook administrative duties like payroll and insurance, while JPT controlled the day-to-day [***13] activities of the employees. Pointing to § 1-2-105(3), MCA, which states, “The singular includes the plural and the plural the singular,” JPT argues “immediate employer” allows for the possibility of multiple employers. JPT argues neither Article II, Section 16, nor any other statute requires an employee to have only one “immediate employer,” and the Legislature was free to define the term “immediate employer” in the PEO Act.
[*P25] In further support of this proposition, JPT relies on Papp v. Rocky Mountain Oil & Minerals, 236 Mont. 330, 769 P.2d 1249 (1989), in which we held that two joint venturers were both entitled to the exclusive remedy. We considered the effect right-of-control had in an employment relationship involving multiple putative employers and concluded joint venturers could delegate management duties to one venturer and still establish equal right-of-control among them. Papp, 236 Mont. at 343, 769 P.2d at 1257 (citation omitted). Papp demonstrates that an employee may have more than one immediate employer under Article II, Section 16, even if the employers have different duties.
[*P26] Papp illustrates one such situation; the present case illustrates another. We see HN7[ ] nothing in Article II, Section 16, that precludes determining a worker has more than one immediate employer. Here, PPC handles the administrative duties while JPT controls the day-to-day job duties of the employees [***14] assigned to it pursuant to their contract. Both PPC and JPT had the right to control Ramsbacher, both statutorily and contractually. JPT was Ramsbacher’s employer-in-fact, [**306] controlling his day-to-day job duties. See Am. Agrijusters Co. v. Mont. Dep’t of Labor & Indus., Bd. of Labor Appeals, 1999 MT 241, ¶ 22, 296 Mont. 176, 988 P.2d 782 (“[A]n individual is an employee of another when that other has the right to control the details, methods, or means of accomplishing the individual’s work, and not just the end result of the work.”) (citations omitted). JPT was also Ramsbacher’s employer-in-law under the PEO Act. Although Ramsbacher urges that Article II, Section 16, requires us to choose only one entity as the immediate employer, our role is not to insert what has been omitted or omit what has been inserted. Section 1-4-101, MCA. Article II, Section 16, does not contain any language which forces us to limit our interpretation of “immediate employer” to only one employer—particularly in light of § 1-2-105(3), MCA.
[*P27] HN8[ ] The exclusive remedy guarantees workers with work-related injuries some form of compensation in exchange for relinquishing potential tort claims against their employers. Stratemeyer v. Lincoln Cnty., 276 Mont. 67, 74, 915 P.2d 175, 179 (1996). In enacting the PEO Act, the Legislature created a statutory scheme which preserved the quid pro quo, maintaining the guarantee to the injured worker while allowing employers the opportunity to delegate [***15] their administrative duties to a PEO if they so choose. Amicus Avitus Group cites national research that demonstrates businesses using PEOs are less likely to go out of business, have lower employee turnover rates, and offer better benefit packages to employees.
[*P28] HN9[ ] Montana has a compelling interest in allowing its citizens the opportunity to pursue employment. Mont. Const. Art. II, § 3. The PEO Act sets forth a carefully prescribed, detailed statutory mechanism for a business structure which may benefit both employers and employees. The PEO Act applies only to two specified PEO-client arrangements—employee leasing arrangements, as defined in § 39-8-102(5), MCA, and professional employer arrangements, as defined in § 39-8-102(9), MCA—and § 39-8-207(8)(b)(i), MCA, extends the exclusive remedy to both PEO and client only in the latter arrangement. This statute is narrowly tailored to its purpose, maintaining the quid pro quo and ensuring both employers and employees retain the benefit of the exclusive remedy. Therefore, we cannot conclude § 39-8-207(8)(b)(i), MCA, violates Article II, Section 16, by impermissibly placing both the PEO and its client under the exclusive remedy.
[*P29] However, Ramsbacher further argues that, even if we determine JPT is his immediate employer, JPT is not entitled to the exclusive remedy of Article II, Section 16, [***16] because it did not provide his workers’ [**307] compensation coverage. Ramsbacher contends only PPC paid the premiums for his workers’ compensation insurance, and Article II, Section 16, provides the exclusive remedy to an immediate employer only if “such immediate employer provides coverage under the Workmen’s Compensation Laws of this state.”
[*P30] Although JPT did not directly pay Ramsbacher’s workers’ compensation premiums, it nonetheless contends it provided Ramsbacher with coverage via its contract with PPC and pursuant to the PEO Act. JPT contends Article II, Section 16, simply requires the employer to provide coverage, but does not specify how such coverage is to be provided. JPT argues that by entering into an arrangement with a PEO, it “provided” Ramsbacher with workers’ compensation insurance coverage.
[*P31] JPT further points out that its contract with PPC required it to compensate PPC for obtaining and maintaining workers’ compensation insurance coverage, and § 39-8-207(1)(c), MCA, requires the client of a PEO to share joint and several liability for workers’ compensation insurance premiums if the PEO fails to pay them.
[*P32] Section 39-8-207(1)(c), MCA, was invoked in a case before the Workers’ Compensation Court. HN10[ ] Where a PEO failed to maintain workers’ compensation insurance coverage [***17] on employees it assigned to a client, that court ruled § 39-8-207(1)(c), MCA, rendered the client company liable for unpaid workers’ compensation premiums the PEO should have paid. MP Livestock Trust/Perry Polzin Trucking v. Dep’t of Labor and Indus., Uninsured Employers’ Fund, 2005 MTWCC 6, ¶ 32. The court further ruled that in professional employer arrangements under the PEO Act—the arrangement which existed in that case and here—both the PEO and the client were employers for workers’ compensation purposes. MP Livestock, ¶ 34.
[*P33] In Papp, we held both employers were immediate employers who “provided” workers’ compensation coverage: one employer was responsible for obtaining and maintaining workers’ compensation insurance coverage for the employee while the other employer contributed to the premiums by reimbursing the payor in proportion to its stake in the joint venture. Papp, 236 Mont. at 343, 769 P.2d at 1257. Although Ramsbacher maintains JPT did not provide his workers’ compensation coverage, the cost of his coverage was factored into the PEO agreement between PPC and JPT. The calculation of the premiums was in fact based on JPT as the employer. Thus, although PPC may have directly paid the insurer, JPT in turn paid PPC for obtaining and maintaining the workers’ compensation insurance coverage. Thus, by contracting with PPC, JPT provided Ramsbacher [**308] with [***18] coverage.
[*P34] Therefore, we conclude JPT is an immediate employer of Ramsbacher who hired him and provided him with workers’ compensation coverage, and JPT is therefore entitled to protection from third-party liability via Article II, Section 16.
[*P35] Finally, amicus MTLA cautions “creative business structuring” could threaten the exclusive remedy if businesses can create complex arrangements which deem numerous entities “immediate employers.” Although this question may arise before this Court in the future, this is not that case. The U.S. District Court faced that question in Skramstad v. Plum Creek Merger Co., 45 F. Supp. 2d 1022 (1999). There, the court examined the relationship between various business entities engaged in a general partnership and determined only one entity was the immediate employer of the injured worker. The court held HN11[ ] where the general partners were “separate entities for all purposes” and none but one played any role in the injured worker’s employment, the exclusive remedy applied only to the entity which hired the injured worker. Skramstad, 45 F. Supp. 2d at 1026-27.
[*P36] Here, the relationship of PEO and client differs from the general partners in Skramstad. Both by statutory mandate and in fact, PPC and JPT played an active role in hiring Ramsbacher, fulfilling the duties of an employer, [***19] and providing Ramsbacher’s workers’ compensation coverage. When Ramsbacher suffered a work-related injury, the existence of two immediate employers instead of one did not affect the scope of relief available to him under Article II, Section 16, and the WCA. The PEO Act did not take away anything to which an injured worker would have been entitled prior to its passage. Since both PPC and JPT are immediate employers who hired Ramsbacher and provided workers’ compensation coverage, they are both entitled to the exclusive remedy of Article II, Section 16.

CONCLUSION
[*P37] We conclude HN12[ ] § 39-8-207(8)(b)(i), MCA, does not violate Article II, Section 16, of the Montana Constitution by depriving an injured worker of full legal redress. Since JPT was an immediate employer who hired Ramsbacher and who provided him with workers’ compensation insurance coverage, JPT is entitled to the benefit of the exclusive remedy as part of the quid pro quo.
[*P38] Affirmed.
/s/ INGRID GUSTAFSON
We concur:
/s/ MIKE McGRATH
/s/ BETH BAKER
/s/ JAMES JEREMIAH SHEA
/s/ JIM RICE
/s/ LAURIE McKINNON
/s/ DIRK M. SANDEFUR