Bauer v. Government Employees Ins. Co., Civ.A. 99-CV-0137.
| Decision Date | 08 September 1999 |
| Docket Number | No. Civ.A. 99-CV-0137.,Civ.A. 99-CV-0137. |
| Parties | Clifford J. BAUER and Betty B. Bauer v. GOVERNMENT EMPLOYEES INSURANCE COMPANY and John Doe. |
| Court | U.S. District Court — Eastern District of Louisiana |
William M. Detweiler, Detweiler & Detweiler, Attorneys at Law, New Orleans, LA, for plaintiffs.
Thomas Michael Masterson, Jazmine A. Duarte, Masterson, Arostegui & Wartelle, New Orleans, LA, for defendants.
ORDER AND REASONS
For the following reasons IT IS ORDERED that the Motion for Summary Judgment of Government Employees Insurance Company (Document 12) is GRANTED.
In this motion for summary judgment, the following facts are uncontested. Plaintiff, a Mississippi resident, driving alone on Interstate Highway 10 in St. Tammany Parish, Louisiana, was involved in a one-car accident when he struck some debris in the roadway. Plaintiff's car is garaged in Mississippi, and plaintiff's automobile insurance policy was issued for delivery in Mississippi by Government Employees' Insurance Co. ("GEICO"), which is domiciled in the District of Columbia.
Plaintiff has sued GEICO, his uninsured motorist ("UM") insurer, claiming coverage for his injuries. GEICO denies coverage, and has moved for summary judgment. Plaintiff has also sued Louisiana through its Department of Transportation and Development ("DOTD") alleging that it failed adequately to clear the roadway after the earlier accident.
Summary judgment is proper when, viewing the evidence in the light most favorable to the non-movant, "there is no genuine issue as to any material fact and ... the moving party is entitled to judgment as a matter of law." Amburgey v Corhart Refractories Corp., 936 F.2d 805, 809 (5th Cir.1991); Fed.R.Civ.P. 56(c). A fact is "material" if its resolution in favor of one party might affect the outcome of the lawsuit, and an issue is "genuine" if the evidence is sufficient for a reasonable jury to return a verdict for the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986).
If the moving party meets its initial burden of establishing that there is no genuine issue, the burden shifts to the non-moving party to produce evidence of the existence of a genuine issue for trial. Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). The nonmovant cannot satisfy his summary judgment burden with conclusory allegations, unsubstantiated assertions, or only a scintilla of evidence. Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir.1994) (en banc). If the opposing party bears the burden of proof at trial, the moving party does not have to submit evidentiary documents to properly support its motion, but need only point out the absence of evidence supporting the essential elements of the opposing party's case. Saunders v. Michelin Tire Corp., 942 F.2d 299, 301 (5th Cir.1991).
In this diversity action, the court applies state substantive law to determine the issue before it. Hulin v. Fibreboard Corp., 178 F.3d 316, 318 (5th Cir.1999) (citing Erie R.R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938)). In the present case, the court must choose between applying Mississippi law or Louisiana law.
GEICO urges that Mississippi law applies. Under Mississippi law, the policy, in accordance with Mississippi's UM statute, would provide UM coverage only if there is "physical contact" between plaintiff's insured vehicle and an unidentified vehicle.1
Plaintiff seeks application of Louisiana's UM statute, which does not require physical contact, provided that a plaintiff proves "by an independent and disinterested witness, that the injury was the result of the actions of the driver of another vehicle whose identity is unknown or who is uninsured or underinsured." La.Rev.Stat.Ann. § 1406(D)(1)(f) ().2
In order to determine which state's substantive law to apply, the court applies the choice of law rules of the forum state, Louisiana. Maryland Cas. Co. v. Integrity Ins. Co., 693 F.2d 506, 508 (5th Cir.1982). Insurance coverage is a matter of contractual law. Prytania Park Hotel v. General Star Indem. Co., 179 F.3d 169 (5th Cir.1999); Ducote v. Koch Pipeline Co., 730 So.2d 432 (La.1999). Under La. Civ.Code art. 3537, contractual obligations are
governed by the law of the state whose policies would be most impaired if its law were not applied to that issue. That state is determined by evaluating the strength and pertinence of the relevant policies of the involved states in light of ... the pertinent contacts of each state to the parties and the transaction, including the place of negotiation, formation, and performance of the contract, the location of the object of the contract, and the place of domicile, habitual residence, or business of the parties....
La.Civ.Code art. 3537 (emphasis added).
Under Article 3537, the place of contract formation and the domiciles of the contracting parties, although not absolutely determinative, indicate that Mississippi would be most adversely affected by the failure to apply its law in the present case. Louisiana's interest is in protecting its citizens with mandatory UM coverage. La. Rev.Stat. § 22:1406. In the present case, no Louisiana resident is affected by the UM coverage issue. The links between this claim and Louisiana are the location of the alleged accident, and the fact that Louisiana's DOTD has been sued for allegedly failing to clean up the highway, neither of which is relevant to the insurance contract.
On the other hand, the links to Mississippi are significant. Plaintiff is a Mississippi resident, and the insurance policy was issued for delivery in Mississippi to cover a car garaged in Mississippi. Mississippi has an obvious interest in regulating the insurance business within Mississippi, see 15 U.S.C. § 1011 (McCarran-Ferguson Act); Holcomb v. Universal Ins. Co., 640 So.2d 718, 722 (La.Ct.App.1994), as well as in interpreting and enforcing contractual obligations among its citizens.3
Moreover, Louisiana's UM statute applies only to "liability insurance covering any accident which occurs in this state and involves a resident of this state." La.Rev. Stat. § 22:1406(d)(1)(a)(iii) (emphasis added). In the present case, the accident occurred in Louisiana but did not involve a Louisiana resident; thus, Louisiana's UM statute by its own terms does not apply. Holcomb, 640 So.2d at 722. Cf. also Snider v. Murray, 461 So.2d 1051 (La.1985) (). Under Louisiana's choice of law rules as well as La.Rev.Stat. § 22:1406, Mississippi law applies.
Mississippi's highest court is the best authority on its own law. See Hulin, 178 F.3d at 319. However, the Supreme Court of Mississippi has not addressed the precise issue of UM coverage where an insured vehicle strikes debris lying in the roadway. In such a case, this court must make an "Erie guess" as to how Mississippi's highest court would rule. Batts v. Tow-Motor Forklift Co., 66 F.3d 743, 749-50 (5th Cir.1995). It is not for this court to change Mississippi law, or "to adopt innovative theories" of Mississippi law, or to make value judgments on what this court thinks Mississippi law ought to be. Jackson v. Johns-Manville Sales Corp., 781 F.2d 394, 397 (5th Cir.1986). It is not this court's role to create or modify Mississippi law, but only to predict it. Batts, 66 F.3d at 750.
In predicting what the Supreme Court of Mississippi would do, this court considers a variety of sources, including guidance offered by Mississippi's highest court and the rules in other states. Rogers v. Hartford Life & Acc. Ins. Co., 167 F.3d 933, 940 (5th Cir.1999). See also, Shanks v. Alliedsignal, Inc., 169 F.3d 988, 993 (5th Cir.1999). Absent evidence to the contrary, this court may also "presume that the Mississippi courts would adopt the prevailing rule if called upon to do so." Jackson, 781 F.2d at 398.
Although it has not precisely addressed the situation of an insured vehicle striking debris left in the roadway, the Supreme Court of Mississippi in Southern Farm Bureau Cas. Ins. Co. v. Brewer, 507 So.2d 369, 372 (Miss.1987), has provided guidance as to the rule it would apply.
In Brewer, the Supreme Court of Mississippi noted that the "physical contact" requirement is intended "to prevent fraudulent claims, ostensibly by providing objective evidence that a vanishing motorist had in fact been involved in the accident". Brewer, 507 So.2d at 372 (quoting Clark v. Regent Ins. Co., 270 N.W.2d 26 (S.D.1978)). The court opined that "physical contact" may include indirect physical contact by the unidentified vehicle "with an intermediate vehicle or other object which, in the same mechanism of the accident, strikes the insured's vehicle...." Id. at 372 (quoting Springer v. GEICO, 311 So.2d 36, 39-40 (La.Ct.App.1975)). But while permitting indirect contact with the unidentified vehicle to satisfy the physical contact requirement, the court nonetheless required that Id. (quoting Springer, 311 So.2d at 39-40).4 Cf. Aetna Cas. & Sur. Co. v. Head, 240 So.2d 280 (Miss.1970) (). The purpose of the "proximate, direct and timely relationship" requirement, like the physical contact requirement, is to reduce the likelihood of fraudulent claims. See Milam v. State Farm Mut....
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