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Kesterson v. Wallut12/7/2004
st an uninsured motorist carrier, the rule from Oates is a generally applicable rule and we can apply it to this situation. If Mr. Wallut's immunity under workers' compensation is a substantive limitation, then the Kestersons cannot bring this uninsured motorist claim against State Farm; if his immunity is merely procedural, then they can bring their uninsured motorist claim. Regardless, they are not required to first assert a tort claim against Mr. Wallut, nor to obtain a judgment against him. Edwards, 574 S.W.2d at 506; Hollis v. Blevins , 927 S.W.2d 558, 568 (Mo. App. S.D. 1996).
The difference between procedural and substantive law is that " rocedural law prescribes the method and manner of enforcing rights or obtaining redress for their invasion, while substantive law creates, defines, and regulates rights." Messner v. Am. Union Ins. Co. , 119 S.W.3d 642, 647 (Mo. App. S.D. 2003). If the workers' compensation law is implicated, it supplants all common law rights of the employee and provides the exclusive remedy against employers for injuries covered by its provisions. Kesterson I, 116 S.W.3d at 595; Taylor , 73 S.W.3d at 621. The immunity from suit provided by workers' compensation also extends to employees of the exempt employer, although in a more limited fashion. Taylor, 73 S.W.3d at 621.
Workers' compensation law is clearly substantive law. As it supplants the common law, it "creates, defines, and regulates" the rights of an employee claiming an injury . Ms. Kesterson's claim for uninsured motorist coverage arises from the negligence of her co-worker, Mr. Wallut. She is barred from suing him because workers' compensation is her exclusive remedy. Id . at 622-23. This is a substantive limitation on her right to sue Mr. Wallut. As such, under Oates this is also a bar on her right to sue her uninsured motorist carrier, State Farm. She cannot show that at the time that the litigation against State Farm commenced, she was legally entitled to recover damages from Mr. Wallut because he was immune from suit, leaving her with no right to a remedy from him. See Crenshaw, 527 S.W.2d at 4.
IV . CONCLUSION
Because the Fund is not insurance, Mr. Wallut was an uninsured motorist. However, Ms. Kesterson is barred from suing Mr. Wallut due to his immunity under workers' compensation law, which is a substantive limitation on her right to sue him. So under Oates , she was not "legally entitled to collect" from Mr. Wallut under the State Farm uninsured motorist policies. State Farm was, therefore, entitled to summary judgment in its favor. We affirm the decision of the trial court.
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