                    In the Missouri Court of Appeals
                            Eastern District
                                        DIVISION TWO

LUCAS COX,                                   )       No. ED102333
                                             )
       Plaintiff/Appellant,                  )       Appeal from the Circuit Court of
                                             )       St. Louis County
       vs.                                   )
                                             )       Honorable Michael D. Burton
ST. PAUL FIRE AND MARINE                     )
INSURANCE COMPANY,                           )
                                             )
       Defendant/Respondent.                 )       Filed: June 16, 2015

                                           Introduction

       Lucas Cox (Appellant) appeals from the trial court’s summary judgment entered in favor

of St. Paul Fire and Marine Insurance Company (Respondent). We affirm.

                               Factual and Procedural Background

       Appellant brought a negligence action against Billy Fair (Fair) for personal injuries

Appellant sustained in November 2006 while riding on the back of a sanitation truck Fair was

driving when both were acting in the course and scope of their employment with the sanitation

department of the City of Kirkwood. Fair turned a corner too sharply, causing Appellant to be

struck by a telephone pole. After a bench trial, the trial court found Fair negligent and awarded a

judgment in Appellant’s favor against Fair in the amount of seven million dollars ($7,000,000).

       In the instant case, Appellant brought a two-count action against Respondent seeking

underinsured motorist (UIM) coverage for his damages (Count I) and equitable garnishment of
his judgment against Fair (Count II) under an insurance policy, #GP09312545 (the Policy),

Respondent issued to the City of Kirkwood. At the trial court, Appellant conceded Respondent

was entitled to summary judgment on Count II, noted by the trial court in its Judgment granting

summary judgment to Respondent on both counts. This appeal follows. Only Count I of

Appellant’s petition, for UIM coverage, is at issue in this appeal. The Policy will be set forth in

pertinent part as relevant to our discussion of Appellant’s point on appeal.

                                         Point on Appeal

       Appellant maintains the trial court erred in entering summary judgment in favor of

Respondent on Appellant’s claim for UIM coverage under the Policy because the sanitation truck

was underinsured as defined by the Policy and none of the exclusions apply.

       Appellant also asserts Missouri’s motor vehicle financial responsibility (MVFR) law

compels coverage under the Policy despite the holding in Baker v. DePew, 860 S.W.2d 318

(Mo.banc 1993), because DePew was wrongly decided.

                                        Standard of Review

       We review the entry of summary judgment de novo. ITT Commercial Finance v. Mid-

Am. Marine, 854 S.W.2d 371, 376 (Mo.banc 1993). Summary judgment is appropriate when

there is no genuine issue of material fact and the movant is entitled to judgment as a matter of

law. Id. at 376. When reviewing a trial court’s grant of summary judgment, this Court views the

record in the light most favorable to the party against whom summary judgment was entered. Id.

       There is no issue in this case over a material fact. Where there is no issue over a material

fact with respect to interpretation of an insurance policy, but there is a question about whether

the language affords coverage for a loss, the matter in dispute is a question of law. Moore v.




                                                 2
Commercial Union Ins. Co., 754 S.W.2d 16, 18 (Mo.App. E.D. 1988). Summary judgment is

properly granted in those circumstances. Id.

                                              Discussion

          The Policy was in full force and effect at the time of the accident and covered the

sanitation truck owned by the City of Kirkwood and driven by Fair at the time of the accident.

The Policy’s pertinent portions are set out as follows.

                                           General Liability

          Form G0209 of the Policy contains the City of Kirkwood’s Public Entity General

Liability (PEGL) Protection:

          Bodily injury and property damage liability.

          We’ll pay amounts any protected person is legally required to pay as damages for
          covered bodily injury or property damage that:

          • happens while this agreement is in effect; and
          • is caused by an event.

          …

          Employees and volunteer workers.

          Your employees are protected persons only for:

          • work done within the scope of their employment by you;
          • their performance of duties related to the conduct of your operations; or
          • their acts as good samaritans in response to an accident or public emergency.

The PEGL coverage is modified by a “Fellow Employee Bodily Injury Endorsement,” which

states:

          We won’t apply the exclusions in this Employees and volunteer workers section
          to bodily injury to any fellow employee that results from work done by:

          Any of your employees.

The PEGL coverage contains the following Auto exclusion:

                                                   3
       Auto. We won’t cover bodily injury, property damage, or medical expenses that
       result from the:

       • Ownership, maintenance, use, or operation;
       • loading or unloading;
       • entrustment to others; or
       • supervision of others in or for the maintenance, use, operation, loading or
       unloading, or entrustment to others; of any auto owned, operated, rented, leased,
       or borrowed by any protected person.

                                            Auto Liability

       The Auto Liability coverage provides as follows in the “Who Is Protected under This

Agreement” Section:

       Corporation or other organization. If you are named in the Introduction as a
       corporation or other organization, you are a protected person for the use of a
       covered auto. Also, your executive officers and directors are protected persons.
       But only for the use of a covered auto. Also, your stockholders are protected
       persons, but only for their liability as your stockholders.

       Any permitted user. Any person or organization to whom you’ve given
       permission to use a covered auto you own, rent, lease, hire or borrow is a
       protected person.

The Policy’s Introduction further states:

       The words you, your, and yours mean the insured named here, which is a

       MUNICIPAL GOVERNMENT
       CITY OF KIRKWOOD
       139 SOUTH KIRKWOOD RD
       KIRKWOOD MO 63122

       Form 44449 of the Policy provides for the City of Kirkwood’s Auto Liability Protection

under the Policy:

       Bodily injury and property damage liability. We’ll pay amounts any protected
       person is legally required to pay as damages for covered bodily injury or property
       damage that:

       • results from the ownership, maintenance, use, loading or unloading of a covered
       auto; and
       • is caused by an accident that happens while this agreement is in effect.

                                                  4
The Auto Liability coverage contains the following Fellow Employee exclusion:

       Injury to a fellow employee. We won’t cover bodily injury to a fellow employee
       of any protected person arising out of and in the course of the fellow employee’s
       employment by you.

Form 44460 provides the Auto Liability coverage’s Limit of Coverage is two million
dollars ($2,000,000).

                                      UIM Coverage

       Form A0094 of the Policy defines a UIM and provides for the City of Kirkwood’s UIM

Protection:

       An underinsured vehicle is a land motor vehicle or trailer for which one or more
       liability policies or bonds at the time of an accident exists, but the total of these
       policies or bonds is less than the amount that a protected person is legally required
       to receive as damages as a result of the accident.

       …

       We’ll pay compensatory damages the named insured and other persons protected
       under this agreement are legally entitled to collect from the owner or driver of an
       underinsured vehicle if the damages result from an accident that caused bodily
       injury to the protected person.

                                   Umbrella Protection

       Forms E0113 and 47550 provide the Policy has Umbrella Excess Liability Protection

limited at five million dollars ($5,000,000) of additional coverage for personal injury. This

coverage has an endorsement, the Public Sector Services Missouri Statutory Cap Limits of

Coverage Endorsement, which provides:

       Missouri personal injury each person statutory cap limit. This limit is shown
       below. It’s the most we’ll pay for all covered personal injury:

       • that’s sustained by any one person or organization;
       • that’s caused by any one or more personal injury offenses that are considered a
       single accident or occurrence under Missouri Revised Statute Section 537.610 or
       any amendments to that section; and



                                                5
           • for which you’re legally required to pay damages that are subject to Missouri’s
           statutory caps on damages for governmental tort liability.

           Missouri personal injury each person statutory cap limit: $345,499.

                                     Appellant’s Claim for Coverage

           Appellant maintains he is entitled to UIM coverage from the Policy for his injuries

because the sanitation truck on which he was injured was underinsured in that it only had a

maximum of two million dollars ($2,000,000) in coverage under the auto liability limit of

coverage, which is less than the seven million dollars ($7,000,000) he incurred in damages.

Appellant argues the Policy’s five million dollars ($5,000,000) in umbrella coverage for personal

injury does not add up to create a total of seven million dollars ($7,000,000) in coverage because

the umbrella coverage is rendered illusory by the statutory sovereign immunity cap of two

million dollars ($2,000,000) set forth in Section 537.610.2.1

           This argument is without merit because the statutory sovereign immunity cap applies to

governmental entities, like Kirkwood, and Fair is not a governmental entity but an employee of

one. See Section 537.600.1(1). The immunity is explicitly waived for negligent acts of public

employees arising out of the operation of motor vehicles within the course of their employment.

See id. Therefore, the Policy’s total coverage for the sanitation truck is seven million dollars

($7,000,000), the same amount as Appellant’s damages, and thus the sanitation truck was not

underinsured. Appellant’s claim for UIM based on this reasoning fails.



1
    All statutory references are to RSMo 2006, unless otherwise indicated. Section 537.610.2 provides:

           The liability of the state and its public entities on claims within the scope of sections 537.600 to
           537.650, shall not exceed two million dollars for all claims arising out of a single accident or
           occurrence and shall not exceed three hundred thousand dollars for any one person in a single
           accident or occurrence, except for those claims governed by the provisions of the Missouri
           workers’ compensation law, chapter 287.



                                                             6
         More significantly, Appellant is not entitled to coverage from this Policy because he is

specifically excluded from liability coverage.

         Appellant’s damages are not covered under the Policy because it has a specific “fellow

employee exclusion.” A “fellow employee” is defined as “another employee of the same

employer.” See Zink v. Employers Mut. Liab. Ins. Co. of Wisconsin, 724 S.W.2d 561, 563

(Mo.App. W.D. 1986) (“Zink II”); see also Ward v. Curry, 341 S.W.2d 830, 837-38 (Mo. 1960)

(“another employee of the same employer”). In Zink v. Allis, 650 S.W.2d 320 (Mo.App. W.D.

1983), the plaintiffs were the survivors of an employee killed while a passenger in a company

truck driven by another employee. Id. at 321. The substance of the plaintiffs’ argument was

that, due to a fellow-employee exclusion in the liability policy, the negligent driver was

“uninsured” for purposes of determining whether that policy’s uninsured motorist coverage was

applicable. Id. at 322. The Zink court observed the plaintiffs “did not really base their claim

upon the terms of the uninsured motorist portion of the policy itself” and that liability under the

uninsured motorist policy was contingent on whether the vehicle in which the decedent was

riding was insured, not whether the driver was insured. Id. at 321. As a liability policy covered

the vehicle in question, the plaintiffs could not directly avail themselves of the uninsured

motorist coverage. Id. at 322-23.2

         It is well-established in Missouri that an individual for whom liability coverage is

excluded under a fellow employee exclusion cannot look to the same policy’s uninsured motorist

provision for coverage because that would nullify the fellow employee exclusion and give the

insured protection for which he did not bargain. Thompson v. Schlecter, 43 S.W.3d 847, 850


2
  Appellant’s argument that the Policy is underinsured as to him is similar to the Zink plaintiffs’ theory of recovery
in that regard. Like Zink, the sanitation truck at issue in the instant case is fully covered and not underinsured. This
is another aspect of why Appellant’s UIM argument must fail. The Policy’s definition of UIM coverage does not
coincide with Appellant’s interpretation of it.

                                                           7
(Mo.App. E.D. 2000); Seymour v. Lakewood Hills Ass’n, 927 S.W.2d 405, 407-09 (Mo.App.

E.D. 1996).

       Seymour and Schlecter involved claims for uninsured motorist coverage and the instant

claim is for underinsured motorist coverage. Missouri statutory law requires all automobile

insurance policies in this State include uninsured motorist coverage, see Section 379.203, but it

does not require the same of underinsured motorist coverage. This is a definite indication in the

law of the sovereignty that it considers uninsured motorist coverage more important than

underinsured motorist coverage. See, e.g., Windsor Ins. Co. v. Lucas, 24 S.W.3d 151, 154

(Mo.App. E.D. 2000); Muschany v. United States, 324 U.S. 49, 66-67, 65 S.Ct. 442, 451, 89

L.Ed. 744, 756 (1945). Exceptions based on public policy must usually find support in necessary

implication from statutory provisions. Halpin v. American Family Mut. Ins. Co., 823 S.W.2d

479, 483 (Mo.banc 1992). Therefore, it follows that if the legislature allows a contractual fellow

employee exclusion to supersede statutorily required uninsured motorist coverage in an auto

liability policy, then it would allow a contractual fellow employee exclusion to override non-

statutorily required underinsured motorist coverage.

       Seymour involved a one-vehicle accident involving a garbage truck. The truck was

owned by Reliable Disposal and insured by Ohio Casualty. Id. at 407. At the time of the

accident, the plaintiff, a garbage collector, was standing on the back of a garbage truck. Id. The

driver of the truck, a fellow employee, while attempting to back down a street to collect trash in a

cul-de-sac, backed the truck into a tree located in the middle of the road, severing the plaintiff’s

left hand. Id. Ohio Casualty denied liability coverage under the “fellow employee” exclusion.

Id. The plaintiff tried to recover under Ohio Casualty’s policy of uninsured motorist coverage.

Id. The trial court granted a motion for summary judgment in favor of Ohio Casualty,



                                                  8
determining that the truck was not an uninsured motor vehicle as defined in Ohio Casualty’s

policy. Id. We affirmed the judgment of the trial court, finding the truck was not an “uninsured

motor vehicle” within the meaning of the policy and the uninsured motorist (UM) statute because

if we were to hold that the plaintiff should fall within uninsured motorist coverage, the effect

would be to nullify the fellow employee exclusion from liability coverage, giving the insured

protection he did not bargain for. Id. at 408.

       In Thompson v. Schlecter, an employee who was injured by a truck driven by a fellow

employee brought an action to recover uninsured motorist benefits from his employer’s

automobile insurer, Liberty Mutual Insurance Company. We affirmed the trial court’s summary

judgment in favor of Liberty. Following Seymour, we stated:

       [The policy] had a specific provision for a fellow employee exclusion. As we
       found in Seymour the fellow employee exclusion does not violate MVFRL or the
       UM statute. Thompson’s employer bargained for liability insurance with
       exclusions, including the fellow employee exclusion. Liberty’s denial of
       coverage in this instance complies with the policy and for what the insured
       bargained for. The insured’s attempt to recover under uninsured motorist
       coverage is an attempt to circumvent what he bargained for under the policy.
       Like in Seymour, if we held that Thompson should fall within the uninsured
       motorist coverage, the effect would be to nullify the fellow employee exclusion
       from liability coverage, giving the insured protection he did not bargain for.
       Thus, the trial court correctly granted Liberty’s motion for summary judgment.

Schlechter, 43 S.W.3d at 850.

        The Missouri Supreme Court upheld the fellow employee exclusion in Baker v. DePew,

860 S.W.2d 318, 323 (Mo.banc 1993), where an employee injured in a one-vehicle automobile

accident while sitting in the back of a work truck obtained a default judgment against the co-

employee driver and brought a garnishment action against the insurer who had issued a business

automobile liability insurance policy covering the truck with the employer as the named insured.

Id. at 319. The co-employee DePew, who was operating the pickup truck with the permission of



                                                 9
the employer at the time of the accident, maintained he was an insured under the omnibus clause

of the policy but the insurance company denied coverage on the grounds that coverage was

excluded by the fellow employee exclusion. Id. The court affirmed the trial court’s judgment

for the insurer, based on the fellow employee exclusion in the automobile policy. Id. at 324.

The court held a fellow employee exclusion does not violate the MVFR law because the statute

allows a policy exclusion for injury to an employee of the insured. Id. The court found the

injured party was in fact an employee of the insured and was engaged in the employment of the

insured at the time of the injury; the MVFR law did not override the contract; and the fellow

employee exclusion clause was fully applicable to the situation and barred coverage to DePew

for his co-employee’s injury. Id.

       In considering whether the MVFR law should be construed in such a way as to override

an insurance contract containing a fellow employee exclusion clause, the Supreme Court said,

“[a]bsent a clear mandate in the statute we are not inclined to override the agreement between

[the insurance company] and [the insured].” Id. at 324. The Western District specifically echoed

that sentiment in Shelter Mut. Ins. Co. v. Gebhards, 947 S.W.2d 132, 134 (Mo.App. W.D. 1997),

where it stated, “[w]e do not find such a mandate in Chapter 303 for overriding Shelter’s fellow

employee exclusion.”

       Appellant maintains DePew was wrongly decided. However, this Court is not at liberty

to second-guess the decisions of the Missouri Supreme Court. We are constitutionally bound to

follow the most recent controlling decision of the Missouri Supreme Court and claims that the

Missouri Supreme Court has incorrectly decided a previous case are not cognizable in the




                                               10
Missourii Court of Ap
                    ppeals. Doee v. Roman Catholic
                                          C        Dioocese of St. L
                                                                   Louis, 311 S.W.3d 818, 822

      p. E.D. 2010).3
(Mo.App

         Based
         B     on the foregoing, we
                                 w find Resp
                                           pondent is enntitled to juddgment as a m
                                                                                  matter of law
                                                                                              w on

Appellan
       nt’s claim forr UIM coverrage becausee Appellant iis excluded ffrom coveraage by the

Policy’s fellow emplloyee exclusiion clause an
                                             nd the sanitaation truck w
                                                                      was not undeerinsured.

Appellan
       nt’s point on appeal is deenied.

                                                      Conclusion
                                                      C

         The
         T trial courrt’s judgmen
                                nt is affirmed
                                             d.




                                                                 Sherrri B. Sullivaan, P.J.

Mary K. Hoff, J., andd
Philip M. Hess, J., co
                     oncur.




3
 We ackno  owledge the diifficulty of seek
                                         king satisfactio
                                                        on of the judgm
                                                                      ment in this casse, but we cannnot overturn a
decision off the Supreme Court.

                                                           11
