Moreno v. Nationwide Ins. Co., 95-7027
| Decision Date | 23 May 1997 |
| Docket Number | No. 95-7027,95-7027 |
| Citation | 114 F.3d 168 |
| Parties | 10 Fla. L. Weekly Fed. C 940 John MORENO, Plaintiff-Appellant, v. NATIONWIDE INSURANCE COMPANY, Defendant-Appellee. |
| Court | U.S. Court of Appeals — Eleventh Circuit |
Terry Carlisle, Lois Beasley-Carlisle, Carlisle & Carlisle, P.C., Tarrant, AL, for Plaintiff-Appellant.
Lynn Etheridge Hare, Janecky, Newell, Potts, Hare & Wells, P.C., Mike Cohan, Birmingham, AL, for Defendant-Appellee.
Appeal from the United States District Court for the Northern District of Alabama.
Before TJOFLAT and DUBINA, Circuit Judges, and STAGG *, Senior District Judge.
This appeal presents a single issue for our consideration: whether a provision in an automobile insurance policy requiring proof of a hit-and-run accident from competent evidence other than the testimony of any insured is in derogation of Alabama's Uninsured Motorist Statute, Ala.Code § 32-7-23 (1975). To anyone familiar with the concept of federalism, this may appear to be an unusual issue for our court. We originally certified this question to the Alabama Supreme Court for its pronouncement on what is clearly a question of substantive state law; however, the court declined our invitation. Moreno v. Nationwide Insurance Company, 105 F.3d 1358 (11th Cir.1997). Therefore, we are placed in the unusual position of having to decide a first impression question of Alabama state law. We hold that a corroboration requirement in phantom driver cases is not contrary to public policy. Accordingly, we affirm the district court's grant of summary judgment in favor of appellee/defendant Nationwide Insurance Company ("Nationwide").
Plaintiff/Appellant John Moreno ("Moreno") had an automobile accident while driving alone at night on Interstate 65 near Birmingham, Alabama. Moreno alleges that an unknown driver in a white car ran him off the road, causing his car to strike a guard rail, flip over, and land some distance from the highway. There was no physical contact between Moreno's automobile and this alleged "phantom" car. Moreno was able to crawl from his car to the side of the road for help. A passing vehicle stopped and the driver used his cellular phone to call for medical assistance and to call Moreno's father. Moreno's father later stated that the passing motorist who rendered assistance to his son told him that he had seen a light or white vehicle weaving on the interstate and this car ran Moreno off the road. The investigating police officer described the event as a single car accident with no witnesses. After Moreno was rushed to the hospital, hospital staff administered a blood alcohol test which measured Moreno's alcohol level at 0.1.
Moreno filed a claim for uninsured motorist benefits with Nationwide pursuant to an automobile insurance policy Nationwide had issued to Moreno's parents. The policy covers hit-and-run accidents, but provides that RE-9, Exhibit A to Second Amended Complaint. In support of his claim, Moreno submitted his statement, his father's statement, the police report, and medical information. Moreno did not submit a statement from, nor can he identify, the motorist who aided him. After its investigation, Nationwide denied coverage on the basis that Moreno failed to submit competent evidence from a non-insured individual proving the facts of the accident, as required by the automobile insurance policy.
Moreno filed his complaint in the Circuit Court of Jefferson County, Alabama. Nationwide removed the case to the United States District Court for the Northern District of Alabama. Nationwide moved for dismissal of certain counts of the original complaint. In response, Moreno filed an amended complaint. Subsequently, Moreno filed a second amended complaint. Nationwide filed an answer to the complaint and a motion for summary judgment. The district court granted Nationwide's motion for summary judgment and Moreno then perfected this appeal.
Alabama's Uninsured Motorist Statute ("the statute") requires automobile insurance carriers to offer uninsured motorist coverage with their liability policies. Ala.Code § 32-7-23(a).
It appears from the plain and unambiguous wording of this section that it is the purpose of the Uninsured Motorist Act, and, thus, the public policy of the state, that Alabama citizens purchasing automobile liability insurance are to be able to obtain, for an additional premium, the same protection against injury or death at the hand of an uninsured motorist as they would have had if the uninsured motorist had obtained the minimum liability coverage required by the Motor Vehicle Safety Responsibility Act.
Champion Ins. Co. v. Denney, 555 So.2d 137, 139 (Ala.1989).
In order to prove coverage under this section, Moreno has the burden of showing that the "phantom" vehicle was uninsured. Motors Ins. Corp. v. Williams, 576 So.2d 218, 219 (Ala.1991). In Ogle v. Long, 551 So.2d 914 (Ala.1989), the Alabama Supreme Court recognized an exception to this general rule that the insured must prove that the tort-feasor driver was uninsured or the owner of the vehicle was uninsured. The court stated that if the claimant can show that he used "reasonable diligence to ascertain the uninsured status of the tort-feasor and such information was unobtainable," the burden shifts to the carrier of the uninsured motorist coverage to prove that the tort-feasor was, in fact, insured. Id. at 915-16. Moreno has neither alleged the application of this exception nor met the requirements for this exception to apply.
Although under Williams the claimant has the burden of proving that the "phantom" vehicle was uninsured, Williams did not establish the standard of proof necessary to meet this burden. Moreno's automobile insurance policy requires proof by competent evidence other than the testimony of an insured in order to recover under the uninsured motorist provision. Our research reveals no Alabama case which speaks directly to the issue of whether a heightened proof requirement for phantom driver claims, such as the one in Moreno's policy, is contrary to Alabama public policy.
In State Farm Fire & Casualty Co. v. Lambert, 291 Ala. 645, 285 So.2d 917 (1973), the Alabama Supreme Court held that the "physical contact" requirement in a hit-and-run clause in the uninsured motorist provision of an...
To continue reading
Request your trial
-
Ameritox, Ltd. v. Millennium Labs., Inc.
...had no choice but to use whatever tools it had available to correctly divine and apply state law. See, e.g., Moreno v. Nationwide Ins. Co., 114 F.3d 168, 169 (11th Cir.1997) (answering a question of first impression under Alabama law only after certifying that question to the Alabama Suprem......
-
Doe #1 v. Red Roof Inns, Inc.
... ... v. Gen. Elec. Co. , 446 U.S. 1, 7, 100 S.Ct. 1460, 64 L.Ed.2d 1 (1980) ... ...
-
Miller Metal Fabrication Inc v. Wall
... ... Metal Fabrication, Inc., and Country Fresh Mushroom Co. (“Country Fresh”) in which the Circuit Court for ... ...
-
Blue Cross and Blue Shield of Alabama, Inc. v. Nielsen
...times this Court certified questions of state law to the Alabama Supreme Court, it declined to answer them, see Moreno v. Nationwide Ins. Co., 114 F.3d 168 (11th Cir.1997); Colonial Properties v. Vogue Cleaners, 86 F.3d 210, 211 (11th Cir.1996), as it has every right to do. In the absence o......
-
Appellate Practice and Procedure - William M. Droze
...question certified because it is the district court order and not the certified question that is brought before the appellate court. 47. 114 F.3d at 168 n.1. 48. 28 U.S.C. Sec. 1291 (1994). 49. 337 U.S. 541 (1949). To be reviewable under Cohen, an order must conclusively determine the dispu......