text:
    STATE of Missouri, Respondent, v. Edgar T. KING, Appellant.
    No. WD 63467.
    Missouri Court of Appeals, Western District.
    Nov. 30, 2004.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Feb. 1, 2005.
    Application for Transfer Denied April 5, 2005.

      Ellen H. Flottman, Columbia, MO, for appellant.
    Deborah Daniels, Jefferson City, MO, for respondent.
    Before VICTOR C. HOWARD, P.J., ROBERT G. ULRICH and PATRICIA A. BRECKENRIDGE, JJ.
   ROBERT G. ULRICH, Judge.

Edgar King appeals his convictions following a judge-tried case for attempting to produce a controlled substance, section 195.211, possession of a controbed substance, section 195.202, and misdemeanor possession of a controbed substance, section 195.202.3. He was sentenced to two concurrent ten-year terms of imprisonment as a persistent drug offender for the felony convictions and to one year in the county jail for the misdemeanor conviction. Mr. King asserts that the trial court erred in not suppressing his statements and the evidence obtained at the scene of a vehicular stop because the Highway Patrol Trooper lacked particularized suspicion to justify the search of his person and his vehicle. He also claims as his second point that the trial court erred in finding him to be a persistent drug offender, section 195.275, because the offense used by the State to allege that he was a persistent drug offender occurred after the instant offense and not before as required by sections 558.021 and 558.016.

The judgment of convictions is reversed.

Facts

Missouri Highway Patrol Trooper Thomas Hall stopped Edgar King on October 5, 2000, on a Missouri highway for exceeding the posted speed limit and for not wearing a seat belt in violation of state law. Mr. King was driving a motor vehicle at 66 miles per hour, six miles in excess of the 60 mile per hour speed limit. Trooper Hall had also received information earlier in the day from Trooper C.W. Craig that Mr. King had left a house in Kirksville that narcotics officers of the Highway Patrol were watching for methamphetamine activity and that Mr. King may have methamphetamine in his car or on his person. When confronted by Trooper Hall, Mr. King stated that the speedometer indicated that he was driving the vehicle at 64 miles per hour. Trooper Hall testified at trial before the court that when he observed Mr. King seated in his vehicle, Mr. King avoided eye contact with him and his right foot “constantly twitched.” Trooper Hall asked Mr. King to accompany him to the Trooper’s vehicle, and Mr. King complied. Trooper Hall observed Mr. King while he was seated in the state vehicle. Mr. King was “very fidgety, and his legs were in constant motion.” Mr. King avoided eye contact while Trooper Hall questioned him.

After completing the summons, Trooper Hall returned Mr. King’s driver’s license to him with a copy of the summons. Trooper Hall then questioned Mr. King further. He asked Mr. King if he had been drinking alcoholic beverages or using drugs, and Mr. King responded by saying that he had not. Trooper Hall asked Mr. King to remove his sunglasses, and the Trooper performed the gaze nystagmus test. Mr. King’s eyes demonstrated no nystagmus. Trooper Hall noted that even after Mr. King’s eyes had time to adjust to the light without his sunglasses that they remained dilated. Trooper Hall was aware that dilated pupils are one sign that the person has used a stimulant. Trooper Hall then asked Mr. King if he had any drugs on his person or in his vehicle, and Mr. King denied that he did. When Trooper Hall then asked if Mr. King would mind if he searched his vehicle, Mr. King responded that he did, saying that he was in a hurry to get home. Trooper Hall informed Mr. King that because of Mr. King’s actions, he intended to have his dog, which was in the vehicle with him, perform an exterior sniff of Mr. King’s vehicle.

While by the driver’s side front door, the dog responded in a way indicating the presence of a controlled drug within the vehicle. Trooper Hall then searched the vehicle and discovered a set of scales with marijuana residue. Mr. King was arrested, and he was searched. Trooper Hall found a plastic baggy of marijuana on Mr. King’s person and subsequently, a small bag containing .44 grams of methamphetamine under the front seat of Mr. King’s vehicle.

Highway Patrol Trooper Craig transported Mr. King to the Adair County Sheriffs Department where he was advised of his Miranda rights. After acknowledging that he understood his rights, Mr. King explained, when asked about apparent burns on his left hand, that he had “frozen” his fingers together the preceding night while stealing anhydrous ammonia, a substance used to manufacture methamphetamine. He admitted that he had routinely manufactured methamphetamine for at least two years. He stated that he had used methamphetamine and other drugs for the previous sixteen years. He acknowledged injecting methamphetamine at 2:00 a.m. the morning of his arrest and to swallowing about a gram of methamphetamine when Trooper Hall stopped him on the highway. Mr. King stated that the small bag of methamphetamine found under the seat of his vehicle was not his.

Engaging in further conversation, Mr. King stated that he routinely stored the components required in his manufacture of methamphetamine on a country road, and he agreed to take Trooper Craig to his residence to obtain the methamphetamine base and an “HCL generator” located at his residence. He stated that he is given the ingredients to manufacture methamphetamine by others, and he “cooks” it in exchange for keeping some of the product.

Trooper Craig accompanied Mr. King to his residence, where Mr. King produced a plastic bucket containing a reddish colored chunky and powdered substance weighing 3.52 grams and containing methamphetamine. He also produced a marijuana cigarette that contained .54 grams of marijuana. Mr. King was released on his own recognizance.

Mr. King contacted Trooper Craig the next day and requested that the Trooper meet him at Big Creek Conservation area where he gave Trooper Craig approximately one gram of methamphetamine. Mr. King was subsequently charged as a prior and persistent drug offender. Following the trial, the court found Mr. King guilty of attempting to produce a controlled substance, possession of a controlled substance, and misdemeanor possession of a controlled substance as charged. Mr. King was sentenced to two concurrent terms of ten years on the felony convictions and to one concurrent year in the county jail for the misdemeanor possession conviction. Mr. King appeals.

Point One

Mr. King asserts as his first point that the trial court erred in not suppressing his statements made at the scene of the vehicular stop and the incriminating evidence obtained there because the Highway Patrol Trooper lacked particularized suspicion to justify the search of his person and his vehicle after he gave Mr. King the summons for speeding and concluded the purpose for the stop.

Standard of Review

The standard of review when determining if a trial court properly ruled on a motion to suppress evidence “is limited to a determination of whether there is sufficient evidence to support the court’s ruling based on the complete record before the trial court.” State v. Slavin, 944 S.W.2d 314, 317 (Mo.App. W.D.1997). The suppression hearing record and the trial record are considered. State v. Deck, 994 S.W.2d 527, 534 (Mo. banc), cert. denied, 528 U.S. 1009, 120 S.Ct. 508, 145 L.Ed.2d 393 (1999). Review is the abuse of discretion standard. State v. Milliorn, 794 S.W.2d 181, 183 (Mo. banc 1990). Whether evidence existed from which the trial court could have arrived at a contrary conclusion is immaterial. State v. Davalos, 128 S.W.3d 143, 147 (Mo.App. S.D.2004); State v. Kampschroeder, 985 S.W.2d 396, 398 (Mo.App. E.D.1999). The trial court’s ruling on a motion to suppress evidence will be affirmed unless it is clearly erroneous. Milliorn, 794 S.W.2d at 183. The trial court may not be reversed if its decision is plausible, even if the reviewing court is convinced that it would have weighed the evidence differently if sitting as the trier of fact. Davalos, 128 S.W.3d at 147. The facts are viewed in a light favorable to the ruling of the trial court. The issue of whether the Fourth Amendment and the state constitution have been violated, however, is a matter of law that is reviewed de novo. Id.

Discussion of Point One

Mr. King does not contest Trooper Hall’s authority in stopping him while he was driving in excess of the posted speed limit and because he was not wearing a seat belt. He claims that Trooper Hall lacked legal authority to do anything more than to permit him to depart the scene of the stop when Trooper Hall concluded his business regarding the reason for the stop, returned Mr. King’s driver’s license, and gave him the summons for exceeding the speed limit. Mr. King claims that at that instant, Trooper Hall had no articulable factual basis to create a reasonable suspicion that he was involved in criminal activity and was compelled by law to permit him to depart without further inquiry.

The Fourth Amendment of the United States Constitution guarantees the right of a citizen to be free from unreasonable searches and seizures. State v. Barks, 128 S.W.3d 513, 516 (Mo. banc 2004). The Fourth Amendment is not offended when a law enforcement officer briefly stops a person or automobile to investigate if the officer has reasonable suspicion, based upon specific and articula-ble facts, that the person or occupant of the vehicle is involved in criminal activity. State v. Franklin, 841 S.W.2d 639, 641 (Mo. banc 1992) (citing Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); United States v. Brignoni-Ponce, 422 U.S. 873, 882, 95 S.Ct. 2574, 2580, 45 L.Ed.2d 607 (1975)).

A routine traffic stop based on the violation of a state traffic law is a justifiable seizure under the Fourth Amendment. Barks, 128 S.W.3d at 516. As long as the police are doing no more than they are legally permitted and objectively authorized to do, the resulting stop or arrest is constitutional. Id. (quoting Slavin, 944 S.W.2d at 317). The fact that a person may be detained for a routine traffic stop does not, however, justify indefinite detention. Id. The detention may only last for the time necessary for the law enforcement officer to conduct a reasonable investigation of the traffic violation. Id. (citing State v. Woolfolk, 3 S.W.3d 823, 828 (Mo.App. W.D.1999)). A reasonable investigation of a traffic violation may include “asking for the driver’s license and registration, requesting the driver to sit in the patrol car, and asking the driver about his destination and purpose.” Id. at 517 (quoting State v. McNaughton, 924 S.W.2d 517, 523 (Mo.App. W.D.1996), overruled on other grounds by State v. Pond, 131 S.W.3d 792 (Mo. banc 2004)). Once the traffic stop is completed, the person detained must be permitted to leave unless the law enforcement officer has an objectively reasonable suspicion, based on specific, articulable facts, that the person is involved in criminal activity. Id. The basis for a reasonable suspicion of criminal activity must arise within the parameters of the traffic stop itself; suspicions based upon answers to questions asked after the stop is completed are irrelevant to the determination of whether specific, articula-ble facts support the suspicion and provide a justification for further questioning once the traffic stop is completed. Id. (quoting Woolfolk, 3 S.W.3d at 829).

In this case, Trooper Hall articulated three reasons for his further detention of Mr. King after issuing the traffic ticket. First, Mr. King exhibited signs of nervousness by avoiding eye contact with the officer while in his own car and in the patrol car. Mr. King also exhibited signs of nervousness in that his leg was twitching rapidly. Trooper Hall testified that he recognized the twitching as a condition associated with methamphetamine use, sometimes called “tweaking.” Third, Trooper Hall had received information earlier that day from Trooper Craig that Mr. King was seen by a law enforcement officer leaving a house in Kirksville where suspected methamphetamine activity was occurring and that Mr. King may have the drug in his car or on his person. Mr. King argues that these facts do not support a reasonable suspicion that he was involved in criminal activity because no evidence was adduced as to the source of the information provided by Trooper Craig and because his lack of eye contact and twitching leg amounted to mere nervousness.

Although a Terry stop or further detention after a traffic stop must be supported by reasonable suspicion, the detaining police officer need not always have personally observed facts amounting to reasonable suspicion. State v. Miller, 894 S.W.2d 649, 652 (Mo. banc 1995); Franklin, 841 S.W.2d at 641. The officer may receive information from another officer sufficient to authorize a stop or further detention. Miller, 894 S.W.2d at 652; Franklin, 841 S.W.2d at 641. If an officer makes a Terry stop or further detains a person after a traffic stop in objective reliance on information provided by another officer, however, the information from the other officer must be based upon reasonable suspicion. Miller, 894 S.W.2d at 652; Franklin, 841 S.W.2d at 643 (both citing United States v. Hensley, 469 U.S. 221, 232, 105 S.Ct. 675, 83 L.Ed.2d 604 (1985)).

Although Trooper Hall testified that he had received information from Trooper Craig before he stopped Mr. King, Trooper Craig did not testify. No other evidence was introduced regarding the basis for Trooper Craig’s conclusion that Mr. King had methamphetamine in his car or on his person except that Mr. King had been seen departing a residence where activity involving methamphetamine was suspected. No bases for such suspicion were disclosed except that he had been in the residence. Because Trooper Craig’s communication to Trooper Hall cannot be imbued with reliability, the call alone did not provide reasonable suspicion by Trooper Hall to detain Mr. King after giving Mr. King the traffic violation citation. Therefore, the question is whether Trooper Hall, the detaining officer, possessed sufficient corroborating information independent of the prior police communication to justify further detention. Miller, 894 S.W.2d at 653 (citing Alabama v. White, 496 U.S. 325, 110 S.Ct. 2412, 110 L.Ed.2d 301 (1990)). “The totality of the circumstances and an objective assessment of the officer’s actions in light of the facts confronting him at the time guide the evaluation of reasonable suspicion.” State v. Bizovi, 129 S.W.3d 429, 432 (Mo.App. E.D.2004).

As discussed above, Trooper Hall articulated two other reasons in addition to Trooper Craig’s phone call for his suspicion that Mr. King was involved in criminal activity — Mr. King’s lack of eye contact and his twitching leg. This nervousness by Mr. King, however, did not justify Trooper Hall’s further detention of Mr. King after the initial traffic stop. Nervousness does not alone give rise to reasonable suspicion. Bizovi, 129 S.W.3d at 432; Barks, 128 S.W.3d at 517 (citing Woolfolk, 3 S.W.3d at 829). It can, however, be considered as one factor in the totality of the circumstances. Bizovi, 129 S.W.3d at 432. While Trooper Hall testified that twitching might be a sign of methamphetamine use, he did not testify, and no other evidence was offered, that twitching is exclusively a sign of methamphetamine use or even that twitching is rarely observed where drug use is not involved. On the contrary, Trooper Hall testified that when he first observed Mr. King’s leg twitching, he believed it a sign that Mr. King was nervous. Only later, after the initial traffic stop and the resulting citation for a traffic violation had concluded, did Trooper Hall think that Mr. King’s leg twitching “had to do more with ... basically having used methamphetamine.” Therefore, Mr. King’s nervousness during the traffic stop was insufficient to create an objective reasonable suspicion that he was involved in criminal activity and, thus, did not justify his continued detention. See, e.g. Slavin, 944 S.W.2d at 319-21 (where defendant’s nervousness, exhibited by wringing hands and sweating, did not provide police officer with reasonable suspicion of criminal activity).

Because the record is devoid of evidence that Trooper Craig’s call was supported by reasonable suspicion or that Trooper Hall, absent the call, independently observed behavior to justify further detention of Mr. King after conclusion of the initial traffic stop, Mr. King’s continued detention after Mr. King received the traffic violation citation and was otherwise free to leave was illegal. The evidence obtained as a result of the unlawful detention was inadmissible.

The State argues that even if the continued detention of Mr. King after the initial traffic stop was illegal, the illegality became irrelevant in that some of the incriminating evidence that was seized was sufficiently attenuated from the illegal detention to purge any taint. Evidence discovered and later found to be derivative of a Fourth Amendment violation generally must be excluded as fruit of the poisonous tree. Miller, 894 S.W.2d at 654. The rule, however, is not absolute. Id. Instead, in determining whether the exclusionary rule applies, the question is whether, granting establishment of the primary illegality, the evidence to which objection is made was acquired by exploitation of the illegality or instead by means sufficiently distinguishable to be purged of the primary taint. Id. (quoting State v. Lingar, 726 S.W.2d 728 (Mo. banc 1987)).

The State argues that the methamphetamine Mr. King surrendered to Trooper Craig the day after the traffic stop was purged of the primary taint because Mr. King was released on his own recognizance the evening of his arrest, and he voluntarily contacted the law enforcement officer to inform him of his possession of the drugs and to surrender them over twenty-four hours after the traffic stop. Even if the State were correct, the evidence would not support Mr. King’s conviction for possession of a controlled substance for which he was charged. Mr. King was charged as a prior and persistent offender with one count of attempting to produce a controlled substance for possessing an HCL generator and methamphetamine base obtained from his home on October 5, 2000; one count of possession of a controlled substance for possessing methamphetamine on October 5, 2000; and one count of misdemeanor possession of a controlled substance for possessing less than 35 grams of marijuana on October 5, 2000. Mr. King was not, however, charged with possession of the “methamphetamine” that he informed Trooper Craig about on October 6, 2000, and surrendered on the same date. The only contraband substance introduced as evidence during trial was the substance seized on October 5, 2000. Trooper Craig’s report reflected that Mr. King called him the day after the initial stop by Trooper Hall and gave him an additional gram of methamphetamine. No evidence was offered that the substance surrendered on October 6, 2000, was tested or that it actually was methamphetamine. Neither was the substance surrendered on October 6, 2000, listed on the lab report with the other drugs seized on October 5, 2000.

The detention of Mr. King following the conclusion of his receiving the citation for traffic violations following the initial stop was not justified by the totality of the attendant facts and was illegal. The trial court erred in denying Mr. King’s motion to suppress and in admitting Mr. King’s statements and the incriminating evidence. Mr. King’s convictions are, therefore, reversed.

HOWARD, P.J. and BRECKENRIDGE, J. concur.

      . All statutory references are to RSMo 2000 unless otherwise stated.

      . Mr. King filed a motion through counsel to suppress the evidence obtained at the scene and to suppress his statements to Trooper Hall. The trial court denied the motion, and the evidence presented at the suppression hearing and additional exhibits introduced on the day of trial constituted the trial. Mr. King did not testify.

      . Because point one is dispositive, point two need not be addressed.


source: Caselaw Access Project

author: JOSEPH M. ELLIS, Judge.

license: Public Domain

text:
    Travis CLARK, Appellant, v. MISSOURI & NORTHERN ARKANSAS RAILROAD COMPANY, INC., Respondent.
    No. WD 63144.
    Missouri Court of Appeals, Western District.
    Nov. 30, 2004.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Feb. 1, 2005.
    Application for Transfer Denied April 5, 2005.

      Michael L. Nepple, St. Louis, MO, for appellant.
    Paul M. Brown, St. Louis, MO, for respondent.
    Before JAMES M. SMART, JR., Presiding Judge, JOSEPH M. ELLIS, Judge and LISA WHITE HARDWICK, Judge.
   JOSEPH M. ELLIS, Judge.

Travis Clark appeals a judgment in favor of the Missouri & Northern Arkansas Railroad Company, Inc. (“MNA”) on his jury-tried claim, under the Federal Employers’ Liability Act (“FELA,” 45 U.S.C. §§ 51-60), for damages arising out of personal injuries Clark claimed to have sustained as a result of a motor vehicle accident which occurred during the course and scope of his employment by MNA. Clark claims the circuit court erred in entering judgment on the jury’s verdict against him due to an improper jury instruction and because it excluded certain evidence offered by Clark at trial. We affirm the judgment of the circuit court.

On the day of the accident (May 2, 2000), Clark was working for MNA as a train conductor. The other member of the crew was Rodney Ayres, the engineer. Their job that day involved taking a loaded coal train from Nevada, Missouri, to the Kansas City Power & Light (“KCP & L”) power plant near Ladue, Missouri, dropping off the train of loaded coal cars at the power plant, and picking up a train of empty coal cars and returning it to Nevada. The train starts out loaded with coal in Nevada. The train then heads east to the KCP & L power plant on a spur fine. MNA delivers the full coal cars to specific locations outside the KCP & L plant, and then picks up the empty coal cars from prior deliveries and returns them to Nevada. While exchanging full coal cars for empty ones, the train must make several different movements along the spur track and various sidings via switches. Sometimes, the engine, with the engineer in the cab, is in front of the coal cars and moving foiward so that the engineer can see the track and surroundings in front of him. Other times, the engineer is performing a backward “shoving” movement, such that the long line of coal cars is between the engine and the “point” of the shove and, thus, the engineer cannot see anything as he proceeds backwards. A portion of the KCP & L plant job requires the train to shove backward around a large loop or “balloon” track over a fairly significant distance. During this long shoving movement, the engineer is in a position where he is unable to see the end of his train as the coal cars that were behind the engine are now blocking the view as the engine is backed up and around the loop.

In compliance with MNA’s operating procedures and rules, engineer Ayres drove the train and conductor Clark worked from a company Jeep. Clark drove the Jeep on public roads and would meet the train at various points along the way as needed to perform the job. Clark’s duties included performing roll-by inspections of the train at various points along the way and flagging public crossings ahead of the train. Clark was also responsible for protecting shoving movements by the train where the engineer could not see ahead.

In order for Clark to perform his duties on the KCP & L plant job, he needed to communicate with the engineer from time to time. Whenever Clark needed to make such contact, he used a Motorola two-way communications radio in the Jeep, which was equipped with a handheld microphone. To use the radio, Clark had to pick up the microphone and speak into it, which required the use of one hand.

At about 6 p.m. on May 2, 2000, while driving southbound on County Road BB, a winding, hilly road located in Bates County, Missouri, Clark was involved in a single-vehicle accident while operating a company-owned Jeep at about 40 miles per hour. The weather was cloudy and the road was dry. The accident occurred when Clark failed to negotiate a series of curves. The right front tire of the Jeep Clark was driving went off the edge of the pavement when he took his eyes off the road and reached with his right hand for the microphone of the two-way radio to call the engineer. Clark then slammed on the brakes and steered the Jeep to the left, but over-corrected, drove off the left side of the road, and crashed into a culvert. Clark acknowledged that he could have waited until later to use the radio or he could have slowed down going around the curve or he could have pulled over to the side of the road to use the radio. He further testified that at the time he reached for the microphone, he thought it was safe to do so and believed he was using “common sense” for his safety.

Missouri State Highway Patrol Trooper Jeff Fugett, who arrived while Clark was still at the scene, investigated the accident and interviewed Clark regarding how it occurred. Trooper Fugett concluded that Clark’s inattention was a probable contributing circumstance to the accident, and cited Clark for operating a motor vehicle in a careless and imprudent manner. Later, Clark paid a fíne to resolve the matter.

MNA’s corporate representative, Alan Satunas, testified that prior to the accident, neither Clark nor anyone else who had performed the conductor’s duties for the KCP & L plant job had ever complained to MNA that it was unsafe for employees to use a two-way radio while operating a company Jeep, or that a rule prohibiting MNA employees from using two-way communications radios while operating motor vehicles was necessary.

At some unspecified point prior to Clark’s accident, MNA had sometimes used three people to work the KCP & L plant job. The three-person crew usually consisted of a conductor and an engineer, both of whom rode on the train itself, and a MNA employee who drove a company Jeep to pick up and drop off members of the train crew at various work locations as the KCP & L plant job progressed. On the day of the accident, however, MNA was using only a two-person crew consisting of a conductor and an engineer. Engineer Ayres drove the train and conductor Clark monitored it while working from a company Jeep, and the third MNA employee or independent contractor was eliminated. Satunas testified that the new method of doing the work required by the KCP & L plant job was reasonably safe for everyone involved and that shoves at the KCP & L plant could be properly protected from the company Jeep.

Clark’s retained expert witness, Charles Culver, offered testimony at trial regarding general railroad operating practices and rule violations by MNA. Culver testified that MNA violated a number of rules in the General Code of Operating Rules (“GCOR”) by not having two crew members on the engine during the KCP & L plant job. These rules describe various duties of train crew members when operating a train or performing switching movements. Culver testified that these rules could not be fully complied with unless both the engineer and the conductor rode on the engine and that MNA violated them by adopting the new method, whereby the conductor worked from the Jeep instead of riding on the engine. Culver also testified that based on these alleged rule violations, it was his opinion that MNA failed to provide Clark with reasonably safe conditions for work or reasonably safe methods for work. On cross-examination, Culver acknowledged that the various GCOR rules he claimed MNA had violated all related to safe operation of a train, not to safe operation of a motor vehicle. Culver also acknowledged that Clark’s accident did not involve operation or movement of the train, and that to the best of his knowledge, nothing happened to the engineer, the engine, or the train performing the KCP & L plant job on the day of Clark’s motor vehicle accident.

Satunas testified that although the GCOR contains several pages of rules relating to two-way radio usage, none of those rules prohibit railroad employees from using a radio while operating a motor vehicle. Moreover, Satunas testified, the GCOR provides that an individual participating railroad company may adopt “special instructions,” applicable only to that company, which replace any other GCOR rules with which the special instructions may otherwise conflict. Prior to Clark’s accident, MNA had adopted such a special instruction (namely, Item F of the Clinton Branch portion of MNA’s timetable), which expressly stated that it was permissible for MNA’s train crews to perform the KCP & L plant job with a crew member in a company motor vehicle provided that all switches were properly inspected and aligned and warning was provided at any intersecting road crossings. On cross-examination, Satunas agreed that having conductors perform the KCP & L plant job in the company Jeep exposed them to the hazards of automobile travel and using two-way radios.

During the instruction conference, Clark tendered Instruction A, a verdict director which, although patterned in large part after the current version of MAI 6th 24.01 (“[1992 Revision] Verdict Directing— F.E.L.A. — Failure to Provide Safe Place to Work”), did not conform to the applicable Notes on Use governing that instruction. The circuit court refused to give Instruction A because it did not conform to MAI 6th 24.01 and the associated Notes on Use, but gave instead Instruction 7, which did. After a four-day trial, the jury deliberated for about four and a half hours before returning a verdict, signed by ten of the jurors, in favor of MNA. The circuit court entered judgment on the jury’s verdict on April 25, 2003, and on July 24, 2003, denied Clark’s Motion for New Trial. Clark filed a timely Notice of Appeal on August 4, 2003, ultimately leading to this appeal.

In his first point, Clark claims the trial court committed reversible error in failing to instruct the jury with Instruction A because it properly submitted the issue of whether MNA was negligent in failing to provide him a reasonably safe method of work for the KCP & L plant job.

Here is the text of Instruction A as submitted by Clark:

Your verdict must be for plaintiff if you believe:

First, methods for work were not reasonably safe and defendant knew or by using ordinary care could have known of such methods and that they were not reasonably safe, and
Second, with respect to such methods for work, defendant failed to provide reasonably safe methods of work, and Third, defendant was thereby negligent, and
Fourth, such negligence resulted in whole or in part in injury to plaintiff.

Meanwhile, Instruction 7, which was also submitted by Clark but given to the jury over his objection, provided:

Your verdict must be for plaintiff if you believe:

First, conditions for work were not reasonably safe and defendant knew or by using ordinary care could have known of such conditions and that they were not reasonably safe, and
Second, with respect to such conditions for work, defendant failed to provide reasonably safe methods of work, and
Third, defendant was thereby negligent, and
Fourth, such negligence resulted in whole or in part in injury to plaintiff.

Both tendered instructions included a “notice tail” pursuant to Note 2 of the Notes on Use for MAI 6th 24.01 that hypothesized actual or constructive notice to MNA of the allegedly unsafe circumstances of Clark’s workplace. However, the two instructions differed in the language used in the “notice tail.” Instruction 7 referred to the allegedly unsafe circumstances of the plaintiffs workplace as “conditions for work,” as instructed in Note 2 of the Notes on Use, whereas Instruction A referred to these circumstances as “methods of work,” which departed from the language used in Note 2 of the Notes on Use in order to match the language of the single specification of negligence upon which Clark elected to submit his case against MNA.

As Clark concedes in his brief, there is no question that Instruction 7, as prepared and submitted by him, follows both MAI 6th 24.01 and the Notes on Use accompanying it to the letter. Moreover, Paragraph 2 of the Notes on Use for MAI 6th 24.01 expressly states that the “notice tail” language about which Clark is complaining on appeal was chosen in order to comply with the Missouri Supreme Court’s explicit directives in Qualls v. St. Louis Southwestern Railway Company, 799 S.W.2d 84 (Mo. banc 1990), cert. denied 499 U.S. 961, 111 S.Ct. 1585, 113 L.Ed.2d 650 (1991), in which the Court directed that the then current Notes on Use were “to be disregarded to the extent that they are inconsistent.” Missouri Supreme Court Committee on Civil Jury Instructions, Missouri AppROved Jury INSTRUCTIONS (6th ed.2002) at 372-73; Qualls, 799 S.W.2d at 86-87.

Notwithstanding this, Clark insists that the trial court should have given Instruction A, arguing that Instruction 7 misstates the federal substantive law which governs FELA actions brought in state courts.

“Federal [FELA] causes are tried in state courts under state procedural rules,” Besse v. Mo. Pac. R.R. Co., 721 S.W.2d 740, 744 (Mo. banc 1986), and the form of instruction in such causes “is a procedural matter governed by the law of Missouri.” Meredith v. Mo. Pac. R.R. Co., 467 S.W.2d 79, 82 (Mo.1971). Therefore, “[t]he form of instructions and the manner in which the substantive law is submitted to the jury in a FELA case [prosecuted in state court] is governed by state law.” Cupp v. Amtrak, 138 S.W.3d 766, 773 n. 1 (Mo.App. E.D.2004). It is, and has for many years been, the law of this state that “[i]f a Missouri Approved Instruction is applicable, such instruction must be given to the exclusion of all others.” Karashin v. Haggard Hauling & Rigging, Inc., 653 S.W.2d 203, 206 (Mo. banc 1983); Rule 70.02(b). Thus, “[i]t is well settled that when a MAI instruction is applicable, its use is mandatory.” Bueche v. Kansas City, 492 S.W.2d 835, 840 (Mo. banc 1973). The reason for this was explained by the Missouri Supreme Court in Davis v. St. Louis Southwestern Railroad Company, 444 S.W.2d 485 (Mo.1969), as follows: “ ‘If this court is to make this system work, and preserve its integrity and very existence, we must insist that mandatory directions be followed and that the pattern instructions be used as written.’ ” Id. at 489 (emphasis in original) (quoting Brown v. St. Louis Pub. Serv. Co., 421 S.W.2d 255, 258 (Mo. banc 1967)).

The same considerations apply to the Notes on Use, which “are an integral part of the system of Missouri Approved Instructions.” Gormly v. Johnson, 451 S.W.2d 45, 46-47 (Mo.1970). “We shall not quibble as to any possible difference in the failure to follow an [approved] instruction and a failure to follow the directions on use. Both are presumed to be error[.]” Id. at 47. Indeed, as this court put it a few years later: “From the strict adherence to M.A.I. so often and forcefully reiterated by the Supreme Court, has developed the equally forcible admonition that the ‘Notes on Use’ thereof be religiously followed.” Royal Indem. Co. v. Schneider, 485 S.W.2d 452, 458 (Mo.App. W.D.1972). And, since “MAI instructions, promulgated and approved by the Supreme Court, are authoritative if applicable to the factual situation ... this court, as was the trial court, is bound by them as surely as it is bound by Supreme Court cases and rules.” Lindsay v. McMilian, 649 S.W.2d 491, 493-94 (Mo.App. W.D.1983); Botanicals on the Park, Inc. v. Microcode Corp., 7 S.W.3d 465, 470 (Mo.App. E.D.1999).

Our Supreme Court has, however, crafted a narrow exception to this general rule. “The Missouri Supreme Court has held that MAI and its Notes on Use are not binding to the extent they conflict with the substantive law. If an instruction following MAI conflicts with the substantive law, any court should decline to follow MAI.” Letz v. Turbomeca Engine Corp., 975 S.W.2d 155, 167 (Mo.App. W.D.1997) (citing State v. Carson, 941 S.W.2d 518, 520 (Mo. banc 1997)). On the other hand, the Missouri Supreme Court has expressly directed that “[i]f the Missouri Approved Instructions include an instruction which correctly states the substantive law [governing the case], the approved instruction must be given.” Meredith, 467 S.W.2d at 82.

Clark urges us to invoke this exception and to declare Instruction 7 erroneous on the ground that it is a misstatement of the federal law governing his claim, under FELA, that MNA was negligent since the “methods of work” prescribed by MNA for the KCP & L plant job were not reasonably safe. However, we decline his invitation to do so, as he cites no state or federal case authority whatsoever for his position that MAI 6th 24.01 or the associated Notes on Use misstate or conflict with the substantive law governing this case. See Alderson v. Clark Oil & Refining Corp., 637 S.W.2d 84, 88-89 (Mo.App. W.D.1982).

Although he denies it in his brief, it is evident that Clark’s real complaint on appeal is that his tendered Instruction A was a “better” instruction than Instruction 7, even though Instruction 7 followed MAI 6th 24.01 and its accompanying Notes on Use to the letter, because Instruction A does not employ the generic phrase “conditions for work,” which he says might have confused or misled the jury about the nature of his claim or led it to require him to prove more than was legally necessary to make a submissible case.

Under the circumstances present in this case, we cannot agree. First, the language criticized by Clark was deliberately and carefully chosen by the Missouri Supreme Court Committee on Civil Jury Instructions, and then subsequently approved by the Missouri Supreme Court itself. “[W]e are to assume that ‘the special committee carefully considered the precise words to use in each approved instruction in order to provide simple, concise and understandable instructions.’ ” State ex rel. Kansas City Power & Light Co. v. Campbell, 433 S.W.2d 606, 611 (Mo.App. W.D.1968) (quoting Brown, 421 S.W.2d at 257). “It is not necessary for us to justify the decision of the Supreme Court and its instruction committee,” Lindsay, 649 S.W.2d at 494, particularly here, where it is evident that the reason MAI 6th 24.01 and its Notes on Use specify that the generic expression “conditions for work” be used in the “notice tail” is simplicity. If the “notice tail” had to be customized to incorporate the language of each of the possible combinations of the four specifications of negligence that may be submitted under MAI 6th 24.01, the “notice tail” would become impossibly convoluted and unintelligible.

Second, complaints similar to those raised by Clark have been firmly rejected by the appellate courts of this state for more than 25 years. In State v. Phillips, 583 S.W.2d 526 (Mo. banc 1979), our Supreme Court admonished all Missouri litigants as follows:

[I]f we are to have a system of patterned instructions, those patterned instructions must be followed. To invite one unapproved ‘improvement’ invites more unapproved, nonuniform ‘improvements.’ Ultimately, the result would be no patterned instructions. Patterned instructions serve to clarify the law as succinctly and clearly as possible. To invite additions, in areas covered by MAI civil or criminal, is to invite confusion.

Id. at 530. Similarly, the Missouri Supreme Court Committee on Civil Jury Instructions has long warned its Comment titled “How To Use This Book”:

You may have the ability to improve an instruction in MAI but you do not have the authority to do it. Do not do it. The use of a provided MAI is mandatory. If you think the change of a word or phrase will make it a better instruction, do not do it. You will be falling into error if you do.

MissouRi Approved Juey Instructions, supra, at XLIX. Likewise, while Rule 70.02(b) provides that an instruction in MAI may need to be modified in order “to fairly submit the issues in a particular case,” where an approved instruction is applicable, does not violate the substantive law, and is supported by the evidence, “the trial court should not modify it to comport with what the court believes to be a better instruction.” Gorman v. Wal-Mart Stores, Inc., 19 S.W.3d 725, 731 (Mo.App. W.D.2000) (internal quotation marks omitted). Therefore, where, as here, an applicable MAI instruction that does not misstate the law and is supported by the evidence at trial is available, neither this court, the trial court, nor a litigant has the duty (or the right) to “improve” it by adding, subtracting, or substituting words or phrases.

Third, Clark has failed to show he was in any way prejudiced by the trial court’s refusal to submit Instruction A, as the transcript demonstrates that he was permitted to fully argue MNA’s alleged negligence under his “unsafe method” theory and to “flesh out” that specific theory of the case to the jury during closing argument. Linton v. Mo. Highway & Transp. Comm’n, 980 S.W.2d 4, 10 (Mo.App. E.D.1998); Criswell v. Short, 70 S.W.3d 592, 595 (Mo.App. S.D.2002).

For all these reasons, we reject Clark’s contention in Point I, which is denied.

In his second and final point, Clark argues that the trial court abused its discretion and committed reversible error in failing to admit into evidence the text of 49 C.F.R. § 220.49 (which is a federal regulation promulgated by the Department of Transportation’s Federal Railroad Administration pursuant to 49 U.S.C. § 20103), as well as the proffered opinion testimony of his retained expert, Charles Culver, to the effect that MNA’s method of work for the KCP & L plant job violated that regulation. Clark asserts that the trial court erred because evidence of a violation of an applicable federal regulation by a defendant is relevant, material, and admissible to assist the jury with its determination of whether the defendant was negligent under FELA.

In FELA cases tried in state courts, the admission or exclusion of evidence is a procedural matter governed by the law of the forum state. Cupp, 138 S.W.3d at 775; Keith v. Burlington N.R.R. Co., 889 S.W.2d 911, 920 (Mo.App. S.D.1994). Thus, the propriety of the trial court’s ruling excluding the evidence proffered by Clark “is a matter of procedure which is controlled by state law.” Eickelman v. Ill. Cent. Gulf R.R. Co., 714 S.W.2d 611, 616 (Mo.App. E.D.1986). Missouri precedent is clear: “A trial court enjoys considerable discretion in the admission or exclusion of evidence, and, absent clear abuse of discretion, its action will not be grounds for reversal.” State v. Mayes, 63 S.W.3d 615, 629 (Mo. banc 2001). “An abuse of discretion occurs when a trial court’s ruling is clearly against the logic of the circumstances then before the court and is so unreasonable and arbitrary that it shocks the sense of justice and indicates a lack of careful, deliberate consideration.” Hancock v. Shook, 100 S.W.3d 786, 795 (Mo. banc 2003). “If reasonable persons can differ as to the propriety of the trial court’s action, then it cannot be said that the trial court abused its discretion.” Id.

“[Federal] regulations offered as evidence of the standard of care owed by a party are competent evidence relevant to the question of negligence.” Giddens v. Kansas City S. Ry. Co., 29 S.W.3d 813, 821 (Mo. banc 2000) (internal citations omitted). However, the proponent of such evidence must “presentí ] sufficient evidence of the relevance and applicability of the ... regulations at issue to allow their admission.” Id.

In this case, the trial court did not abuse its discretion in refusing to admit into evidence the text of 49 C.F.R. § 220.49 or Culver’s opinion testimony that MNA violated it because Clark failed to lay a proper foundation for admission of that evidence. According to Clark’s offer of proof, the regulation he sought to introduce into evidence (and about which Culver was prepared to testify) was as follows:

When radio communication is used in lieu of hand signals in connection with the switching, backing or pushing of a train, engine or car, the employee directing the movement shall give complete instructions or keep in continuous radio contact with the employees receiving the instructions. When backing or pushing a train, engine or cars, the distance of the movement must be specified, and the movement must stop in one-half the remaining distance unless additional instructions are received. If the instructions are not understood or continuous radio contact is not maintained, the movement shall be stopped immediately and may not be resumed until the misunderstanding has been resolved, radio contact has been restored, or communication has been achieved by hand signals or other procedures in accordance with the operating rules of the railroad.

However, this version of 49 C.F.R. § 220.49, which was originally promulgated in 1977 (see 42 Fed.Reg. 5,065 (Jan. 27, 1977)), was superseded effective January 4, 1999 — more than a year before Clark’s accident. See 63 Fed.Reg. 47,182 (Sept. 4, 1998). The current version of 49 C.F.R. § 220.49 (titled “Radio communication used in shoving, backing or pushing movements”), which took effect on January 4, 1999, and was in effect at the time of Clark’s accident on May 2, 2000, reads as follows:

When radio communication is used in connection with the shoving, backing or pushing of a train, locomotive, car, or on-track equipment, the employee directing the movement shall specify the distance of the movement, and the movement shall stop in one-half the remaining distance unless additional instructions are received. If the instructions are not understood, the movement shall be stopped immediately and may not be resumed until the misunderstanding has been resolved, radio contact has been restored, or communication has been achieved by hand signals or other procedures in accordance with the operating rules of the railroad.

63 Fed.Reg. 47,198; 49 C.F.R. § 220.49 (2004).

There is no question that the revised version of 49 CFR § 220.49 is substantially and materially different than the one proffered by Clark. Since an inapplicable or non-pertinent federal regulation is both irrelevant and incompetent and therefore inadmissible, see Giddens, 29 S.W.3d at 821, the trial court clearly did not abuse its discretion in refusing to admit into evidence the text of the superseded version of 49 C.F.R. § 220.49 or Culver’s opinion testimony that MNA violated it.

Moreover, in his offer of proof, Clark also failed to show that the regulation Cul-ver would have accused MNA of violating had anything to do with the work Clark was doing at the time of his motor vehicle accident or that the alleged violation caused or contributed to cause Clark’s accident or injury, in whole or in part. There is no evidence in the record that the train to which Clark was assigned to work as conductor was involved in “switching, backing or pushing of a train, engine or car” at the time of Clark’s motor vehicle accident. To the contrary, at the time of the accident, the train was hauling empty coal cars from the KCP & L power plant back to Nevada, as Clark drove the company Jeep over public roads toward Nevada. The only “switching, backing, or pushing of a train, engine or car” involved with the KCP & L plant job Clark was performing on the day of his accident occurred at the KCP & L power plant before the train left the power plant to haul empty coal cars back to Nevada. Consequently, Clark’s contention would necessarily fail even if the version of 49 C.F.R. § 220.49 upon which he relied had not been superseded. Point denied.

The judgment of the trial court is affirmed.

All concur.

      . The GCOR is a set of operating and safety rules formulated, maintained, and voluntarily subscribed to by most U.S. railroad companies, including MNA.

      . Clark tendered Instruction 7 as an alternative in the event the court refused Instruction A.

      . FELA cases may be brought, at the plaintiff's option, in federal court or in state court. 45 U.S.C. § 56. Clark chose to bring his FELA suit against MNA in the Circuit Court of Jackson County. “As a general matter, FELA cases adjudicated in state courts are subject to state procedural rules, but the substantive law governing them is federal.” St. Louis Southwestern Ry. Co. v. Dickerson, 470 U.S. 409, 411, 105 S.Ct. 1347, 1348, 84 L.Ed.2d 303, 306 (1985).


author: THOMAS H. NEWTON, Judge.

text:
    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.
    Dec. 7, 2004.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Feb. 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. Kes-terson and her husband, Mr. Phillip Kes-terson, 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 Sedaba, Missouri, to Kansas City, Missouri. The Missouri Department of Natural Resources employed both Ms. Kesterson and Mr. Wal-lut, 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. Kester-son’s injuries and Mr. Kesterson’s loss of consortium due to Mr. Wallut’s negbgence 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 pobcies 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 negbgence 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 legaby entitled to collect from the owner or driver of an unin sured 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. Wal-lut was not an uninsured motorist because he was covered by the Fund. 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 Kester-sons 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 Kes-tersons’ 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 OP 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). 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 Kes-tersons 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.

A. Mr. Wallut was uninsured

Under section 537.610.1, the commissioner of administration may purchase liability insurance for tort claims, but is not required to do so. Further, under section 105.1070,

[t]he commissioner of administration may procure under the provisions of chapter 34, RSMo, motor vehicle, ... liability insurance covering the operation of state-controlled motor vehicles, ... by state employees, ... provided, however, that in lieu of procuring insurance to cover such risks, the commissioner may determine that the state shall self-insure or assume all or any portion of such risks.

In this case, we must determine whether the Fund constitutes a type of self-insurance, as State Farm claims it does, or is not insurance at all, merely how the state has assumed any risks, as the Kestersons claim. There is no suggestion that the state has otherwise procured liability insurance. If the Fund is insurance, then Mr. Wallut was insured and State Farm was properly granted summary judgment because its uninsured motorist coverage provisions do not apply. But if Mr. Wallut was not insured, then he is an uninsured motorist and the uninsured motorist provisions appear to apply, although we must then consider the second part of the point relied on. To determine what the Fund is, we look at both the statutory language itself and the case law considering the Fund.

The Fund is created by section 105.711, which says:

1. There is hereby created a “State Legal Expense Fund” which shall consist of moneys appropriated to the fund by the general assembly and moneys otherwise credited to the fund pursuant to section 105.716.
2. Moneys in the state legal expense fund shall be available for the payment of any claim or any amount required by any final judgment rendered by a court of competent jurisdiction against:
(1) The state of Missouri, or any agency of the state, pursuant to section 536.050 or 536.087, RSMo, or section 537.600, RSMo;
(2) Any officer or employee of the state of Missouri or any agency of the state....
5. Except as provided in subsection 3 of this section, ... the aggregate of payments from the state legal expense fund and from any policy of insurance procured pursuant to the provisions of section 105.721 shall not exceed the limits of liability as provided in sections 537.600 to 537.610, RSMo. No payment shall be made from the state legal expense fund or any policy of insurance procured with state funds pursuant to section 105.721 unless and until the benefits provided to pay the claim by any other policy of liability insurance have been exhausted.

The final piece of the pertinent statutory puzzle comes from section 105.721.1, which says:

The commissioner of administration may, in his discretion, direct that any or all of the moneys appropriated to the state legal expense fund be expended to procure one or more policies of insurance to insure against all or any portion of the potential liabilities of the state of Missouri or its agencies, officers, and employees.

When interpreting statutes, we must ascertain the intent of the legislature, giving the words their plain and ordinary meaning. Ozark Wholesale Beverage Co. v. Supervisor of Liquor Control, 80 S.W.3d 491, 497 (Mo.App. W.D.2002). Where the language is clear and unambiguous, we do not construe the statute; we apply it based on its clear language. See Dorsey v. State, 115 S.W.3d 842, 844 (Mo. banc 2003).

When looking at the language of the various statutes together, it appears that the Fund is not insurance. In construing a statute, all of the provisions should be harmonized if reasonably possible. Hemann v. Camolaur, Inc., 127 S.W.3d 706, 713 (Mo.App. W.D.2004). “Related statutes are also relevant to further clarify the meaning of a statute.” State v. Blocker, 133 S.W.3d 502, 504 (Mo. banc 2004). Section 105.1070 says that the state may procure insurance, self-insure, or assume all of the risks. Because section 105.1070 lists both self-insurance and assuming all risks as two separate options, we find it unreasonable for State Farm to claim that the assumption of all risks means that the state is self-insured. Section 105.711 creates the Fund, which by its language appears to only be a means of assuming the risk — “[m]oneys ... shall be available for the payment of any claim or any amount required by any final judgment” — not to be an insurance policy. And section 105.721 says that the commissioner may use the Fund to purchase insurance, which again suggests that the Fund is not insurance itself.

Although the statutes are fairly clear, we also consider the case law that has developed construing the Fund.

The Kestersons rely on Casady v. Board of Governors of Northeast Missouri State University, 875 S.W.2d 909 (Mo.App. W.D.1994), to argue that the Fund is not insurance. In Casady, Ms. Casady was an employee of the state and while driving, within the course and scope of her employment, in a vehicle owned by Northeast, she was injured by an uninsured driver in an automobile accident. Id. at 910. Ms. Casady demanded that Northeast provide uninsured motorist coverage to her because it provided liability protection to her through the Fund. Id. at 911. She was told that the State of Missouri is uninsured for automobile liability, but that all costs of claims are paid out of the Fund. Id. The trial court found that Northeast was a self-insurer through the operation of the Fund and, as such, was required to provide uninsured motorist coverage. Id.

On appeal, we determined that the vital question was whether Northeast was statutorily required to provide uninsured motorist coverage. Id. at 912. Ms. Casady claimed that section 34.260 RSMo.1986 required Northeast to either procure automobile liability insurance or self-insure against such risks. Id. Our court determined that the plain language of section 34.260 was permissive: the commissioner may procure insurance, may self-insure, or may choose to do neither. Id. at 913. We then considered whether the Fund imposed a duty on Northeast to obtain automobile liability insurance. Id. We noted that section 105.721 states that the commissioner may purchase insurance policies with the money from the Fund, but that neither sections 105.721 nor 105.711 required the state to procure insurance or provide uninsured motorist coverage. Id. at 914. We held that Northeast was not self-insured. Id. We specifically stated that the fact that any amount that Northeast was required to pay would be paid by the Fund did not make Northeast self-insured and noted that both this court and the eastern district had previously found that the Fund does not constitute insurance. Id. at 914 & n. 8.

As the Kestersons correctly state, under Casady the Fund is not insurance. But State Farm offers three arguments to show that Casady is not controlling. It first claims that Casady involved a claim by a state employee for uninsured motorist coverage, so it does not answer any questions with respect to a third-party liability claim, such as we have here. But Casady does not limit its decision based on the status of the appellant; it clearly states that the Fund is not insurance. So this first distinction is irrelevant.

State Farm next focuses on the fact that Casady deals with section 34.260 RSMo. 1986 and that the section is now 105.1070 and it contains different language. The only language change that really matters in this case is that instead of saying that in lieu of procuring insurance the commissioner may “determine that the state shall self-insure against all or any portion of such risks,” § 34.260 RSMo.1986, the statute now says that in lieu of procuring insurance the commissioner may “determine that the state shall self-insure or assume all or any portion of such risks.” § 105.1070. Although no court has considered the impact of this new language, we see no reason that the analysis in Casady should not still apply. The statute is still permissive; it allows the commissioner to procure insurance, self-insure, assume all the risk, or do nothing. Further, allowing the commissioner to decide that the state will assume the risk, obviously through the Fund, does not mean that the Fund is insurance; it simply provides a source to pay for that assumed risk. The change in the language alone is not enough to lead us to decide that the Casady court’s reiteration that the Fund is not insurance is no longer applicable.

State Farm, however, presents one more argument. It claims that Dixon v. Holden, 923 S.W.2d 370 (Mo.App. W.D.1996), changes Casady by holding that the Fund is insurance. In Dixon, Mr. Dixon, a former employee of the Missouri State Highway Patrol, won a federal suit against two former co-employees. Id. at 373. He brought suit in Missouri to collect on his federal judgment from the Fund and was granted summary judgment in his favor. Id. The state appealed, claiming inter alia, that because Mr. Dixon was a judgment creditor, he had no standing to invoke the Fund. Id. at 374. The pertinent part of the Dixon decision decided whether the Fund operated as indemnification or insurance. Id. at 375-78.

This court first considered cases from other states that found that similar funds were indemnification. Id. at 375-76. In those cases, the courts found that the purpose of the statute was to benefit the state employee, not the judgment creditor, so only the employee could request payment from the fund as indemnification for whatever judgment it had to pay. Id. at 376. This court then considered cases from other states that found that similar funds were insurance. Id. at 376-77. One court found that “indemnify” should not be used in the technical and legalistic sense; the state should just pay judgments against employees committed in the performance of their duties. Id. at 377 (citing City of Memphis v. Roberts, 528 S.W.2d 201, 205-06 (Tenn.1975)). That court “recoil[ed]” at the suggestion that a policeman or fireman would have to pay for a judgment first and, only then, be able to recover from the fund, instead of just having the fund pay the claim directly. Id. (citing Roberts, 528 S.W.2d at 205). Another court found that the fund allowed “ ‘a direct action against the indemnitor by the person in whose favor a judgment against the indemnitee was entered.’ ” Dixon, 923 S.W.2d at 377 (citing Bell v. City of Milwaukee, 536 F.Supp. 462, 476 (E.D.Wis.1982) (declined to follow on other grounds by Olson v. Connerly, 156 Wis.2d 488, 457 N.W.2d 479, 484 n. 13 (1990))) And another court said that the statute is analogous to insurance. Id. (citing Libercent v. Aldrich, 149 Vt. 76, 539 A.2d 981 (1987)).

This court found that several aspects of the Fund “lead to the conclusion that the law is insurance, or not strictly indemnity.” Id. The court decided that this is really a policy question. Id. at 378. The court held that it would not read into a statute that is meant to protect and help defend and pay judgments against its employees a rule that the state only has to pay the amount that the employee could afford to pay to the injured party. Id. It also found that there was no rule that the state employee must first pay the judgment to establish the state’s liability. Id. The court said that the better policy is to allow the judgment creditor to seek satisfaction and have the state pay the judgment, either through self-insurance or through a policy procured for this purpose. Id. It said that if the true intent of the Fund is to protect state employees, that intent would be defeated if the employee had to pay before the Fund was required to pay anything; the Fund represents the state’s choice to defend employees and pay any judgments against them. Id.

State Farm reads this case as holding that the Fund is insurance for state employees. In fact, our court has twice since relied on Dixon in discussing the Fund. See Betts-Lucas v. Hartmann, 87 S.W.3d 310, 319 (Mo.App. W.D.2002) (“The central case interpreting the Legal Expense Fund statutes is Dixon .... ”); Cottey v. Schmitter, 24 S.W.3d 126, 129 n. 3 (Mo.App. W.D.2000) (citing Dixon when stating that the statutory scheme of the Fund is one of insurance rather than indemnity). But it should be noted that the Betts-Lucas court said that Dixon made several significant holdings, but did not say that a finding that the Fund was insurance was one of them. 87 S.W.3d at 320.

The Kestersons claim that Dixon does not apply to this case. They believe that because Dixon is only about whether a judgment creditor has standing to access the Fund, it is not similar enough to this case to be helpful. They state that our court merely decided that the Fund was more like insurance than indemnity with respect to paying judgment creditors who have a claim against state employees. They note that Dixon did not expressly state that the Fund is insurance. Perhaps more important, the Kestersons note that Dixon did not overrule or modify Casady, which was decided only two years earlier. In fact, Dixon did not even mention Casa-dy, let alone discuss how its decision related to Casady.

We hold that both Casady and Dixon are still good law and in full force. We believe that Dixon did not mention Casa-dy, and, therefore, did not overrule it, because Dixon was dealing with a different issue. The Dixon court was only concerned with how the Fund makes its payments, not with whether the state is actually insured, which was the concern in Casady and is the issue in this case. There are very good policy reasons for treating the Fund more like an insurance policy than an indemnity statute with respect to how payments from the Fund should be made, and Dixon clearly articulates those policy reasons. And the cases relied on by Dixon for that finding could be read as creating more of a hybrid between indemnity and insurance. They use both terms and, as in Dixon, are most interested in making sure that judgments are just paid by the state without including the employee in the payment. In fact, Dixon never clearly states what the Fund is, it merely says that the Fund “is insurance, or not strictly indemnity.” 923 S.W.2d at 377.

Casady, on the other hand, clearly states that the Fund is not insurance. Further, its decision on that point is not limited to its facts. The fact that Dixon held that the Fund is more like an insurance policy does not mean that it held that the Fund is an insurance policy. No case has said that the Fund actually makes the state self-insured. So Dixon has not changed Casady’s ruling that the Fund is not insurance.

Moreover, when coupling the language of the statutes with Casady, the Fund clearly is not insurance. As mentioned above, Casady applies to what is now section 105.1070; the language change from section 34.260 RSMo.1986 is negligible. As such, the state still has a choice to procure insurance, self-insure, assume all of the risks, or do nothing at all. And Dixon does not change that. Further, the other statutes that Casady considered, sections 105.711 and 105.721, have not changed. And our own analysis of the language of the statutes leads us to conclude that the Fund is not insurance.

Because the Fund is not insurance, the state is uninsured and, therefore, so is Mr. Wallut. We must, therefore, consider the rest of the point relied on: whether or not the Kestersons are legally entitled to recover from Mr. Wallut in spite of the fact that he is immune from suit.

B. The Kestersons are not legally entitled to collect from Mr. Wallut

State Farm maintains that because Mr. Wallut is immune from suit, the Kestersons are not legally entitled to collect from him as required by the uninsured motorist policies. Therefore, even if Mr. Wallut was uninsured, the Kestersons’ claims for uninsured motorist benefits were properly rejected. The Kestersons argue that Mr. Wallut’s immunity does not mean that they are not legally entitled to collect from him.

State Farm asserts that Missouri law is clear about when a party may make a claim under uninsured motorist coverage and claims that, under that law, the Kes-tersons may not make such a claim here. The Kestersons claim that because no Missouri court has decided whether a tortfea-sor’s immunity destroys an insured’s right to collect, we must look to decisions from other states, which are split on this issue, to decide whether or not the Kestersons are entitled to collect. Although Missouri has not dealt with this precise issue, the case law has established a clear rule for when an insured is legally entitled to collect from an uninsured motorist. We can apply that rule of law to this case, making it unnecessary to look at decisions from other states.

The Missouri Supreme Court interpreted the requirement that an insured be “legally entitled to recover” from the uninsured motorist in Oates v. Safeco Insurance Company of America, 583 S.W.2d 713 (Mo. banc 1979). In Oates, Mr. Oates was in an automobile collision and sued Mr. Coad, the other driver. Mr. Coad filed a counterclaim against Mr. Oates. Id. at 714. Mr. Oates also filed suit in the city of St. Louis against Safeco on the uninsured motorist provision in his insurance policy with Safeco. Id. Mr. Oates then dismissed his cause of action against Mr. Coad without prejudice. Id. Mr. Coad’s counterclaim resulted in a judgment in his favor. Id. at 715. Safeco claimed the defenses of res judicata and collateral estoppel against Mr. Oates based on the resolution of Mr. Coad’s claim. Id. The trial court granted Safeco’s motion to dismiss on the grounds that Mr. Oates was collaterally estopped. Id.

The Supreme Court addressed whether Mr. Oates was legally entitled to recover damages against Mr. Coad after the Oates/ Coad lawsuit was completed. Id. The court reiterated the rule that “[t]o recover under an uninsured motorist policy, the insured does not need an unsatisfied judgment against the uninsured motorist, but has the burden of proving (1) that the other motorist was uninsured, (2) that the other motorist is legally liable to the insured, and (3) the amount of damages.” Id. (internal citation omitted). The second element is equivalent to the requirement that the insured be legally entitled to recover. Id.

The court then considered several different cases that had decided whether an insured is barred from proceeding against his uninsured motorist carrier when he is barred from proceeding against the tort-feasor. Id. at 715-16; see Crenshaw v. Great Cent. Ins. Co., 527 S.W.2d 1, 4 (Mo.App.1975) (not legally entitled to recover because the wrongful death statute of limitations had expired and that limitation was a necessary condition to the right to sue the tortfeasor); Hunt v. State Farm Mut. Auto. Ins. Co., 560 S.W.2d 280, 282 (Mo.App.1977) (adopting the reasoning in Cren-shaw for a similar situation); Edwards v. State Farm Ins. Co., 574 S.W.2d 505, 506-07 (Mo.App.1978) (insured was legally entitled to recover from the tortfeasor even though the five year statute of limitations for tort claims had expired and the insurer, therefore, could not claim its right of subrogation against the tortfeasor); Reese v. Preferred Risk Mut. Ins. Co., 457 S.W.2d 205, 206, 208-09 (Mo.App.1970) (insured’s dismissal of the uninsured motorist with prejudice “was not an adjudication on the merits and did not affect the liability of the insurer to the insured and did not bar an action against the insurer”; the phrase “legally entitled to recover” is ambiguous and refers to the fault of the uninsured motorist).

The court then concluded that under all of these decisions, “the insured is ‘legally entitled to recover’ if his action is not barred by a substantive limitation at the time the action is brought against the uninsured motorist carrier (Crenshaw, supra) and he can show (1) causal negligence or fault on the part of the uninsured motorist, (2) the absence of contributory negligence where submitted, and (3) resulting damage to himself (Reese, supra).” Oates, 583 S.W.2d at 716-17. It is this rule from Oates that applies to this case. Although Missouri has not specifically decided whether workers’ compensation immunity prevents suit against 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 “[procedural 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.

LISA WHITE HARDWICK, P.J. and ROBERT G. ULRICH, J. concur.

      . See Kesterson I, 116 S.W.3d at 593, for a detailed discussion of the various amended petitions.

      . All state employees who drive state-owned vehicles receive a pamphlet that states:
      Liability to other persons (bodily injury and property damage) due to employee negligence in the operation of a state vehicle will be covered by the state provided the employee was operating the vehicle while conducting official business within the scope of their employment.
      This coverage is provided by the Fund.

      . Unless otherwise indicated, all rules refer to Missouri Court Rules (2004).

      . The Kestersons also mention that State Farm claimed in the trial court that under the terms of its policy it would never have to pay the Kestersons because any amount it owed would be set off by money the Kestersons received elsewhere. As the Fund would pay any judgment in full, there would be nothing left for State Farm to pay. State Farm does not discuss this argument on appeal, and based on our resolution of the Kestersons’ claims, we need not consider it.

      . Unless otherwise indicated, all statutory references are to RSMo.2000.

      . Now Truman. State University.

      . Section 34.260 said, in pertinent part:
      [t]he commissioner of administration may procure on the basis of competitive bids under the provisions of this chapter, motor vehicle, ... liability insurance covering the operation of state-controlled motor vehicles, ... by state employees, ... provided, however, that in lieu of procuring insurance to cover such risks, the commissioner may determine that the state shall self-insure against all or any portion of such risks.
      This section was changed in 1995 to section 105.1070, quoted above, with only a few minor changes in the language of the statute when it was given the new section number.

      . The Casady court was referring to Miller v. State, 731 S.W.2d 885, 886 (Mo.App. E.D.1987) (the state had no liability insurance because the Fund does not satisfy the insurance requirement), and to Asher v. Department of Corrections & Human Resources, 727 S.W.2d 155, 157 (Mo.App. W.D.1987) (the injured party, who claimed that sovereign immunity was waived because the state had liability insurance, did not meet the insurance requirement by recourse to the Fund). Both of these cases were partially overruled on other grounds by Wilkes v. Missouri Highway & Transportation Commission, 762 S.W.2d 27, 28-29 (Mo. banc 1988), but, as the Casady court noted, their finding that the Fund is not insurance was not modified.

      . Although the language in the policies in this case is "legally entitled to collect” instead of "legally entitled to recover,” we agree with the parties that there is no legal distinction between these phrases.

      . The other issues resolved in Oates are not relevant to the resolution of this case.

      . The Kestersons rely heavily on Reese to support their argument that they only need to show that Mr. Wallut, the uninsured, was at fault for the accident. State Farm claims that Oates limits this holding. We think that this debate is meaningless. The Kestersons interpretation of Reese is correct and Oates did not limit it. But Oates did explain the differences between cases like Reese and Crenshaw, and it is that resultant holding that directs our decision in this case.