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Kesterson v. Wallut12/7/2004
Opinion Vote: AFFIRMED.
White Hardwick, P.J., and Ulrich, J., concur.
Opinion:
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. 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 ve
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