Milam v. State Farm Mut. Auto. Ins. Co.

• Decision Date: 17 August 1992
• Docket Number: No. 91-1878,91-1878
• Citation: 972 F.2d 166
• Parties: Sandra K. MILAM, widow of Steven R. Geiger, individually and as natural tutrix of the estates of her minor children, Emil J. Geiger and Amy N. Geiger, Plaintiffs-Appellants, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 166

972 F.2d 166

Sandra K. MILAM, widow of Steven R. Geiger, individually and as natural tutrix of the estates of her minor children, Emil J. Geiger and Amy N Geiger, Plaintiffs-Appellants, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant-Appellee.

No. 91-1878.

United States Court of Appeals Seventh Circuit.

Argued Feb. 18, 1992.

Decided Aug. 17, 1992.

Paul H. Due (argued), Due, Smith, Caballero & Price, Baton Rouge, La., Thomas J. Young, Young & Riley, Indianapolis, Ind., for plaintiffs-appellants.

John D. Cochran, Jr. (argued), Kenneth M. Wahnsiedler, Young, Cochran & Reese, Indianapolis, Ind., Anthony J. Clesi, Ward & Clesi, New Orleans, La., for defendant-appellee.

Before POSNER and KANNE, Circuit Judges, and VAN SICKLE, Senior District Judge. ^*

POSNER, Circuit Judge.

Stephen Geiger was driving eastbound on an interstate highway in Indiana when a truck crossed the median from the westbound lanes and struck his car, killing him. The driver of the truck had lost control when it struck another truck's wheel (that is, the tire and rim assembly) that, we are required to assume, was upright and rolling in his lane. It was night and no one saw where the wheel came from or even whether it was rolling toward or away from, or possibly at an angle to, the truck that struck it. It might have come off the axle of a truck in front (possibly even in one of the eastbound lanes) or have fallen from the back of a truck. Conceivably it had been lying by the highway and was struck by a vehicle and sent spinning. It may even have been rolled into the highway by mischief makers, although this is unlikely because a truck wheel is heavy and the stretch of the highway on which the accident occurred is flat.

State Farm had issued an insurance policy to Geiger that promised to "pay damages for bodily injury an insured is legally entitled to collect from the owner or driver of an uninsured motor vehicle. The bodily injury must be caused by accident arising out of the operation, maintenance or use of an uninsured motor vehicle." The policy defines "uninsured motor vehicle" to include "a 'hit-and-run' land motor vehicle whose owner or driver remains unknown and which strikes [either the insured or] the vehicle the insured is operating." Evidence in a wrongful death suit (the outcome of which we do not know) against the driver of the truck that had struck Geiger's car head-on revealed that in all likelihood the offending wheel had indeed been in motion. Geiger's widow inferred that it had come off a truck whose unknown driver would have been legally liable for the accident to her husband for having allowed the wheel to come off and menace other users of the highway. So she made a claim under the uninsured-motorist policy, but State Farm refused to pay.

She had moved to Louisiana after the death of her husband, together with their two children, and she filed suit on behalf of herself and the children against State Farm in a Louisiana state court to collect under the policy. The parties being of diverse citizenship and the defendant a nonresident of Louisiana, the suit was removed to a federal district court in Louisiana, then transferred pursuant to 28 U.S.C. § 1404(a) to a federal district court in Indiana, then dismissed on State Farm's motion for summary judgment because "where, as here, the plaintiffs offer no evidence of a motor vehicle which played a causal role in the accident by starting a 'continuous and contemporaneously transmitted force,' and since a wheel and tire assembly is not itself a motor vehicle, the court concludes that no uninsured motorist coverage exists."

A jurisdictional question (not remarked by the parties or the district judge) detains us briefly en route to the merits. Mr. Geiger was a citizen of Illinois, as is State Farm, and under the diversity statute the legal representative of a decedent is deemed to be a citizen of the same state as the decedent was. 28 U.S.C. § 1332(c)(2). This provision did not become effective until after this suit was filed, see Pub.L. 100-702, § 202(b) (1988), but the law in this circuit before then was to the same effect. Wilsey v. Eddingfield, 780 F.2d 614 (7th Cir.1985). The law in the Fifth Circuit was to the contrary, however, Bianca v. Parke-Davis Pharmaceutical Division, 723 F.2d 392 (5th Cir.1984)--there the citizenship of the representative was what counted for diversity purposes--thus presenting us with the interesting question whether, at least in jurisdictional matters, the law of the transferor circuit should govern, by analogy to the principle that the applicable choice of law rule is that of the transferor rather than transferee state. Ferens v. John Deere Co., 494 U.S. 516, 110 S.Ct. 1274, 108 L.Ed.2d 443 (1990); Van Dusen v. Barrack, 376 U.S. 612, 84 S.Ct. 805, 11 L.Ed.2d 945 (1964); Barron v. Ford Motor Co., 965 F.2d 195, 197 (7th Cir.1992). (Speaking of choice of law, we note that the parties agree that either Indiana or Illinois law governs the substantive issues in this case, and since there is no apparent difference between the pertinent legal doctrines of the two states we needn't decide which state's law to apply.) It would be a little odd if the federal district court in Louisiana had jurisdiction of this suit when it was removed but the federal district court in Indiana to which it was transferred did not.

We need not resolve the issue, because of an oddity of Louisiana law. (That law is based on the Code Napoleon, so much of it is odd from a common law perspective.) Louisiana apparently does not regard a decedent's estate as an entity on behalf of which a lawsuit can be brought. La.Civ.Code art. 2315.1 (1991); Davis v. State Farm Mutual Ins. Co., 208 So.2d 412 (La.App.1968). So Mrs. Geiger brought this suit not as the legal representative of her husband's estate but in her own behalf and as the guardian of her children. As she and the children are the beneficiaries of the uninsured motorist policy, they have a financial stake that will support this suit. But she is not suing as a representative of her husband's estate, and therefore the main objection to basing diversity jurisdiction on the representative's own citizenship--that it facilitates spurious invocations of the diversity jurisdiction (the estate of a state resident could sue another state resident in federal court by appointing a nonresident executor)--is absent.

We turn to the merits. In the usual hit and run case, the only issue under an insurance policy that promises to pay the damages for which the driver of the unidentified vehicle would have been legally liable to the insured if he could have been sued is whether the unknown driver was negligent. In the subclass of cases illustrated by the present one, however, the immediate cause of the victim's injury is not the unidentified vehicle itself but some object--whether part of the vehicle, or part of the vehicle's load--that comes off or falls off or out of the vehicle and strikes the victim or his vehicle. Here a third vehicle, the truck, supplied the propulsive force that made the spinning tire an agency of harm, but most courts believe that the presence of such an intermediary between the unidentified vehicle and the victim makes no difference. Southern Farm Bureau Casualty Ins. Co. v. Brewer, 507 So.2d 369 (Miss.1987); In re Arbitration Between New York City Health & Hospitals Corp. and Degorter, 133 Misc.2d 93, 506 N.Y.S.2d 644 (S.Ct.1986); Kersten v. Detroit Automobile Inter-Insurance Exchange, 82 Mich.App. 459, 469-70, 267 N.W.2d 425, 430 (1978); State Farm Mutual Automobile Ins. Co. v. Mitchell, 553 S.W.2d 691, 692 (Ky.1977) (per curiam). The problem lies rather with the fact that the agency of harm is not the unidentified vehicle itself but a jettisoned part of the vehicle or its load.

These cases of "indirect" physical contact make judges worry about an increased danger of fraudulent claims, about the difficulty (notwithstanding the doctrine of res ipsa loquitur ) of determining whether the driver or owner or manufacturer of the unidentified vehicle was actually negligent, and about the further difficulty of holding this class of cases separate from a third class, that of accidents caused by vehicular debris, a class of accidents that stretches--most courts think to the breaking point--the meaning of "hit and run accident." Wynn v. Doe, 255 S.C. 509, 180 S.E.2d 95 (1971); Kersten v. Detroit Automobile Inter-Insurance Exchange, supra, 82 Mich.App. at 471-72, 267 N.W.2d at 431; Barnes v. Nationwide Mutual Ins. Co., 186 Cal.App.3d 541, 230 Cal.Rptr. 800 (1986); contra, Adams v. Mr. Zajac, 110 Mich.App. 522, 313 N.W.2d 347 (1981). Suppose a truck loses a tire or a part of its load, which falls on the highway and lies there, and ten minutes--or an hour--later a driver collides with it. Should he be allowed to file a claim under his uninsured motorist policy on the theory that the tire he hit was once a part of or carried in a vehicle whose owner is unknown?

At first blush there seems no objection, because, but for whatever deficiencies in the operation or maintenance of the vehicle caused the debris, the collision would not have occurred. However, "but for" is rarely an adequate notion of cause. We do not say that since, in all probability, Mr. Geiger would not have had an accident on I-70 if Columbus had not discovered America, Columbus caused the accident. Cf. Berry v. Sugar Notch Borough, 191 Pa. 345, 43 Atl. 240 (1899); Central of Georgia Ry. v. Price, 106 Ga. 176, 32 S.E. 77 (1898). What we pick out from the welter of necessary or sufficient conditions as "the cause" of some event depends on the nature of our interest in the event. If we...