Kesterson v. Wallut

• Decision Date: 07 December 2004
• Docket Number: No. WD 63961.,WD 63961.
• Citation: 157 S.W.3d 675
• Parties: Nicole R. KESTERSON and Philip M. Kesterson, Appellants, v. Gary R. WALLUT, et al.; Defendants State Farm Mutual Automobile Insurance Company and State Farm Fire & Casualty Company, Respondents.
• Court: Missouri Court of Appeals

157 S.W.3d 675

Nicole R. KESTERSON and Philip M. Kesterson, Appellants, v. Gary R. WALLUT, et al.; Defendants State Farm Mutual Automobile Insurance Company and State Farm Fire & Casualty Company, Respondents.

No. WD 63961.

Missouri Court of Appeals, Western District.

December 7, 2004.

Motion for Rehearing and/or Transfer to Supreme Court Denied February 1, 2005.

Application for Transfer Denied April 5, 2005.

Matthew J. Padberg, St. Louis, MO, for Appellants.

James C. Spangler, Sedalia, MO, for Respondents.

Before LISA WHITE HARDWICK, P.J., ROBERT G. ULRICH and THOMAS H. NEWTON, JJ.

THOMAS H. NEWTON, Judge.

Ms. Nicole Kesterson, a Missouri state employee, was injured in a car accident when she accompanied her boss, Mr. Gary Wallut, on a work-related trip. Ms. Kesterson and her husband, Mr. Phillip Kesterson, sued State Farm Automobile Insurance Company, seeking recovery under their uninsured motorist provision. State Farm moved for summary judgment on two grounds. It claimed that Mr. Wallut was insured because he was covered by the Missouri State Legal Expense Fund (Fund) and it claimed that even if he was uninsured, the Kestersons were not legally entitled to recover from him because he was immune from suit under the workers' compensation law. The trial court granted State Farm's motion and the Kestersons appealed. We hold that the Fund is not insurance but that because workers' compensation immunity is a substantive limitation on the Kestersons' right to sue Mr. Wallut, they are not legally entitled to recover from him. The judgment of the trial court is affirmed.

I. FACTUAL AND PROCEDURAL BACKGROUND

We have already dealt with a portion of the issues in this case in Kesterson v. Wallut, 116 S.W.3d 590 (Mo.App. W.D.2003) (Kesterson I). We recap only the necessary facts for this opinion; Kesterson I can be referenced for a more extensive discussion of the facts in this case.

On December 30, 1998, Ms. Kesterson accompanied her direct supervisor, Mr. Wallut, on a drive from Sedalia, Missouri, to Kansas City, Missouri. The Missouri Department of Natural Resources employed both Ms. Kesterson and Mr. Wallut, and it owned the vehicle being driven. The weather was inclement and worsened during the trip, with a build-up on the road of both snow and ice. At some point, Mr. Wallut lost control of the vehicle and it crossed into oncoming traffic, where it was struck by a truck. Ms. Kesterson sustained severe injuries, including a closed head injury, a fractured skull, and injuries to her neck, shoulders, and back. As these injuries occurred in the course and scope of Mr. Wallut and Ms. Kesterson's employment, Ms. Kesterson applied for and received workers' compensation benefits for her injuries.

The Kestersons then brought the lawsuit that brings them before our court. In their initial petition, they named only Mr. Wallut, seeking recovery for Ms. Kesterson's injuries and Mr. Kesterson's loss of consortium due to Mr. Wallut's negligence in driving the vehicle. They amended their petition several times, with the final petition including State Farm as a defendant.¹ The Kestersons brought two counts seeking recovery pursuant to the uninsured motorist provisions in their policies with State Farm, alleging that Mr. Wallut was an uninsured driver and that his car was uninsured. They also brought two counts under their uninsured motorist coverage alleging that Ms. Kesterson was injured by the negligence of a phantom driver who bumped Mr. Wallut and, therefore, precipitated the accident.

The State Farm uninsured motorist provisions provide that:

We will pay damages for bodily injury an insured is legally entitled to collect from the owner or driver of an uninsured motor vehicle. The bodily injury must be sustained by an insured and caused by accident arising out of the operation, maintenance or use of an uninsured motor vehicle.

Uninsured Motor Vehicle—means:

1. a land motor vehicle, the ownership, maintenance or use of which is:

a. not insured or bonded for bodily injury liability at the time of the accident;....

An uninsured motor vehicle does not include a land motor vehicle: ...

3. owned or operated by a self-insurer under any motor vehicle financial responsibility law, a motor carrier law or any similar law....

Mr. Wallut filed various motions to dismiss for lack of subject matter jurisdiction. His last motion relied on State ex rel. Taylor v. Wallace, 73 S.W.3d 620 (Mo. banc 2002). In Taylor, the Supreme Court held that a co-employee is immune from suit and workers' compensation is the only remedy when the co-employee's negligence amounted to only a breach of the employer's duty to provide a safe workplace. Id. at 622-23.

State Farm filed a counterclaim, seeking a declaration that the uninsured motorist provisions did not apply because Mr. Wallut was not an uninsured motorist because he was covered by the Fund.² State Farm filed a motion for summary judgment on its declaratory judgment action, alleging that Mr. Wallut was driving a state-owned vehicle and was not an uninsured motorist because the Fund covered liability claims. After Taylor was handed down, State Farm amended its summary judgment motion to include an argument that if Mr. Wallut was immune and, therefore, had no legal liability, then the uninsured motorist coverage did not apply because the Kestersons were not "legally entitled to collect" from Mr. Wallut.

The trial court granted Mr. Wallut's motion to dismiss for lack of subject matter jurisdiction under Taylor and granted State Farm's summary judgment motion on the Kestersons' uninsured motorist claim for Mr. Wallut, although it did not state the grounds for granting the motion. The trial court made no ruling on the Kestersons' uninsured motorist claim for the phantom driver. The Kestersons appealed and in Kesterson I we affirmed the dismissal of the claims against Mr. Wallut for lack of subject matter jurisdiction because he was immune from suit under Taylor. 116 S.W.3d at 595-96. Because the trial court did not deal with the Kestersons' claim for the phantom driver, the decision with respect to State Farm was not a final judgment and we dismissed that point. Id. at 598.

The Kestersons dismissed their claim against State Farm for the phantom driver and now appeal the grant of summary judgment in favor of State Farm with respect to uninsured motorist coverage for Mr. Wallut's actions. The Kestersons bring one point on appeal. They claim that the trial court erred in granting State Farm summary judgment because Mr. Wallut was uninsured and because they are legally entitled to recover from him.

II. STANDARD OF REVIEW

The trial court shall enter summary judgment only if "the motion, the response [and] the reply ... show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Rule 74.04(c)(6).³ The appellate court reviews the grant of summary judgment essentially de novo. ITT Commercial Fin. Corp. v. Mid-Am. Marine Supply Corp., 854 S.W.2d 371, 376 (Mo. banc 1993). The record is reviewed in the light most favorable to the party against whom judgment was entered, and the non-movant is given the benefit of all reasonable inferences from the record. Id.

The moving party's entitlement to judgment as a matter of law revolves to a great extent around whether that party is the claimant or the defending party. Id. at 381. The claimant is the party "seeking to recover," and the defending party is the party "against whom a claim ... is asserted." Rule 74.04(a) & (b). Although State Farm filed its motion for summary judgment on the basis of its counterclaim for a declaratory judgment, State Farm is actually the defending party. As we said in Kesterson I, State Farm was simply asserting the affirmative defense of no coverage. 116 S.W.3d at 597. As the defending party, State Farm is not required to controvert each element of the Kestersons' claims in order to establish its right to summary judgment. ITT Commercial Fin. Corp., 854 S.W.2d at 381. Instead, State Farm can establish its right to judgment by showing (1) facts that negate any one of the Kestersons' elements; (2) that the Kestersons, after an adequate period of discovery, have not been able to produce, and will not be able to produce, evidence sufficient to allow the trier of fact to find the existence of any one of their elements; or (3) that there is no genuine dispute as to the existence of each of the facts necessary to support State Farm's properly-pleaded affirmative defense. Id. State Farm relied on the third method by asserting the affirmative defense of no coverage.

To prevent summary judgment, the Kestersons need to show that there is a genuine dispute as to the facts underlying State Farm's right to judgment on the grounds of lack of coverage, i.e., that Mr. Wallut is arguably uninsured and that they are legally entitled to collect from him. See id.

Although we do not know the reasons that the trial court granted State Farm's summary judgment motion, we will affirm a grant of summary judgment if the decision is correct "under any theory supported by the record developed below and presented on appeal." Victory Hills Ltd. P'ship. I v. NationsBank, N.A., 28 S.W.3d 322, 327 (Mo.App. W.D.2000). "If the trial court's judgment does not specify the basis upon which summary judgment was granted, we will uphold the decision if it was appropriate under any theory." Horneyer v. City of Springfield, 98 S.W.3d 637, 639 (Mo.App. S.D.2003).

III. LEGAL ANALYSIS

The Kestersons' point on appeal really breaks down into two separate points: Mr. Wallut was uninsured and the Kestersons are legally entitled to collect from Mr. Wallut even though he has immunity from suit under Taylor.⁴

A. Mr. Wallut was uninsured

Under section 537.610.1,⁵ the commissioner of administration may purchase liability insurance for tort claims, but is not required to do so. Further, under ...