Kesterson v. Wallut

• Decision Date: 08 July 2003
• Docket Number: No. WD 61846.,WD 61846.
• Citation: 116 S.W.3d 590
• Parties: Nicole R. KESTERSON and Philip M. Kesterson, Appellants, v. Gary WALLUT, State Farm Mutual Automobile Insurance Company and State Farm Fire & Casualty Company, Respondents.
• Court: Missouri Court of Appeals

116 S.W.3d 590

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

No. WD 61846.

Missouri Court of Appeals, Western District.

July 8, 2003.

Motion for Rehearing and/or Transfer to Supreme Court Denied September 2, 2003.

Application for Transfer Denied October 28, 2003.

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

J. Christopher Spangler, Sedalia, MO, for respondents State Farm Automobile Insurance Co. and State Farm Fire & Casualty Co.

Jeremiah W. (Jay) Nixon, Atty. Gen., Virginia H. Murray, Assistant Attorney General, Jefferson City, MO, for respondent Wallut.

Before NEWTON, P.J., and ULRICH and SMITH, JJ.

EDWIN H. SMITH, Judge.

Nicole R. Kesterson and her husband, Philip M. Kesterson, appeal from an order of the Circuit Court of Saline County dismissing their claims against Gary Wallut. They also appeal from the circuit court's summary judgment for respondent, State Farm Mutual Automobile Insurance Company, on their claims against it under Nicole's uninsured motorist coverage. The appellants' claims arose out of a motor vehicle accident in which Nicole was injured while riding as a passenger in a vehicle owned by her employer, the Missouri Department of Natural Resources, and driven by Wallut, a co-employee. The appellants filed their third amended, six-count petition in the circuit court seeking damages for Nicole's personal injuries and Philip's loss of consortium. In Count I, Nicole sought recovery against Wallut on a theory of negligence. In Counts III and V, she sought recovery against State Farm under her uninsured motorist coverage, alleging in Count III that she was injured by the negligence of Wallut, who was uninsured, and alleging in Count V, that she was injured by the negligence of a phantom driver. In Counts II, IV, and VI, Philip asserted a loss of consortium claim predicated on Nicole's claims as pled in Counts I, III, and V, respectively.

The appellants raise two points on appeal, the first point dealing with the trial court's dismissal of their claims against Wallut for a lack of jurisdiction and the second dealing with the summary judgment for State Farm on the appellants' claims under Nicole's uninsured motorist coverage. In Point I, they claim that the trial court erred in dismissing Nicole's negligence claim against Wallut for lack of subject matter jurisdiction based on the Labor and Industrial Relations Commission (Commission) having exclusive jurisdiction because the circuit court does have jurisdiction over claims for injuries alleged to have been caused by an affirmative negligent act of a co-employee in breach of a duty, which was independent of the non-delegable duty of the employer to provide a safe workplace. In Point II, they claim that the trial court erred in granting summary judgment to State Farm on their claims alleged in Counts III and IV of their third amended petition based on Wallut's being immune from suit as a co-employee because on the facts alleged in State Farm's motion and as a matter of law, Wallut is not immune from suit, as claimed in Point I, and even if he is, the policies would still provide uninsured motorist coverage in that under the express terms of the State Farm policies and the underlying public policy of § 379.203.1, the appellants are still "legally entitled to collect" from Wallut, and he is considered uninsured, despite his being covered by the State Legal Defense Fund.

We affirm in part and dismiss the appeal in part.

Facts

On December 30, 1998, Nicole was riding in a 1998 Dodge Ram pickup truck, owned by her employer and driven by Wallut, her immediate supervisor. Wallut was the Superintendent of Truman State Park near Warsaw, Missouri. At 9:00 a.m. that morning, Nicole and Wallut met for breakfast at a Perkins' Restaurant in Sedalia, Missouri, then purchased some tools at a Sedalia hardware store for use at the park. The two then proceeded to Kansas City, Missouri, with Wallut driving, where they were to obtain a bid from Home Depot for cabinets for Wallut's residence at the park, provided by his employer. They experienced intermittent snow and snow-packed pavement while in route. As Wallut drove westbound on Interstate 70, he lost control of the vehicle, which crossed the median and struck an eastbound truck. The collision caused Nicole to be ejected from the vehicle and to sustain serious injuries, which included a closed head injury, a fractured skull, and injuries to her neck, shoulders, and back. As a result of her injuries, Nicole applied for and received workers' compensation benefits claiming that she was injured in the course and scope of her employment.

On January 3, 2000, Nicole filed a one-count damage petition in the Circuit Court of Saline County, in which she sought recovery against Wallut on a theory of negligence. In her petition, Nicole alleged that Wallut negligently caused the December 30, 1998, accident by failing to keep a careful lookout, driving at a speed that was excessive for the circumstances, and failing to drive within his lane of travel. On March 28, 2000, Wallut filed a motion to dismiss the petition for lack of subject matter jurisdiction, claiming that Nicole's exclusive remedy was under the Workers' Compensation Law in that the accident causing the injuries for which she sought recovery occurred while both Nicole and Wallut were State employees, in a State vehicle, and conducting State business. The motion was overruled on September 18, 2000.

On January 25, 2001, Nicole and Philip filed a first amended petition, alleging four counts. In Count I, she sought recovery for her personal injuries against Wallut on a theory of negligence, and in Count III she sought recovery against "State Farm Fire & Casualty Company," under her uninsured motorist coverage, alleging that her injuries were caused by the negligence of a phantom driver. In Counts II and IV, Philip asserted a loss of consortium claim predicated on Nicole's claims as pled in Counts I and III.

On April 23, 2001, State Farm Mutual Automobile Insurance Company filed an answer to the appellants' first amended petition, alleging, inter alia, that it, not State Farm Fire & Casualty Company, issued the uninsured motorist policies to Nicole, and, therefore, it was the proper party defendant in the appellants' action. On May 21, 2001, the appellants filed a motion seeking leave to file a second amended petition substituting State Farm Mutual Automobile Insurance Company for State Farm Fire & Casualty Company, which was sustained on June 7, 2001.

On August 1, 2001, Wallut filed a motion for summary judgment, claiming that the Workers' Compensation Law provided the exclusive remedy for Nicole's claim. The motion alleged, as undisputed material facts, that both Nicole and Wallut were State employees on State business in a State vehicle at the time that the accident occurred. Wallut's motion was denied by the circuit court on September 20, 2001.

The appellants filed a second amended petition, alleging six counts, on August 13, 2001. In Count I, Nicole sought recovery against Wallut on a theory of negligence. In Count III, she sought recovery against State Farm pursuant to uninsured motorist provisions contained in four separate policies issued to her by State Farm. Specifically, Count III alleged that Wallut was a known uninsured motorist, in that the State vehicle which Wallut was driving was covered by the State Legal Expense Fund, which was not an insurance program. In Count V, she sought recovery against State Farm under her uninsured motorist coverage, alleging that she was injured by the negligence of a phantom driver. In Counts II, IV, and VI, Philip asserted a loss of consortium claim predicated on Nicole's claims as pled in Counts I, III, and V, respectively.

On September 4, 2001, State Farm filed its answer to the appellants' petition, a cross-claim against Wallut, and a counterclaim against the appellants. In its counterclaim, State Farm sought a declaration of the court that the uninsured motorist policies issued to Nicole did not provide coverage for the December 30, 1998, accident, because Wallut was not an uninsured motorist in that he was covered by the State Legal Expense Fund which would satisfy any judgment obtained against Wallut by Nicole.

On February 22, 2002, State Farm filed a motion for summary judgment on its declaratory judgment action against the appellants. The motion alleged, as undisputed material facts, that at the time of the accident, Wallut was driving a State-owned vehicle within the course and scope of his employment with the Missouri Department of Natural Resources; and that, at the time of the accident, the State Legal Expense Fund covered liability claims arising out of a State employee's operation of a State-owned vehicle. Consequently, State Farm claimed that it was entitled, as a matter of law, to a declaratory judgment that the uninsured motorist provisions contained in Nicole's State Farm policies did not cover the December 30, 1998, accident because Wallut was not an uninsured motorist.

On May 28, 2002, Wallut filed a motion to dismiss Counts I and II of the appellants' second amended petition. On June 24, 2002, Wallut filed an amended motion to dismiss, which claimed that, in light of the Missouri Supreme Court's recent decision in State ex rel. Taylor v. Wallace, 73 S.W.3d 620 (Mo. banc 2002), the trial court was without subject matter jurisdiction because the plaintiffs' exclusive remedy was under the Workers' Compensation Law.

On July 8, 2002, the Kestersons filed a third amended petition which was essentially the same as the second amended petition. On August 3, 2002, the trial court granted Wallut's motion to dismiss Counts I and II of the appellants' third amended petition for lack of subject matter jurisdiction, and granted State Farm's motion for summary...