Stuckey v. 21st Century Centennial Ins. Co.

• Decision Date: 28 September 2018
• Docket Number: Case No. 3:16-CV-768 JD
• Citation: 346 F.Supp.3d 1268
• Parties: Allen STUCKEY, et al., Plaintiffs, v. 21ST CENTURY CENTENNIAL INSURANCE COMPANY, Defendant.
• Court: U.S. District Court — Northern District of Indiana

346 F.Supp.3d 1268

Allen STUCKEY, et al., Plaintiffs,

v.21ST CENTURY CENTENNIAL INSURANCE COMPANY, Defendant.

Case No. 3:16-CV-768 JD

United States District Court, N.D. Indiana, South Bend Division.

Signed September 28, 2018

Patricia A. Mastagh, Thomas R. Hamilton, Hamilton & Mastagh, Elkhart, IN, for Plaintiffs.

Hans H.J. Pijls, PHV, Dinsmore & Shohl LLP, Ann Arbor, MI, Anthony M. Zelli, Dinsmore & Shohl LLP, Louisville, KY, for Defendant.

OPINION AND ORDER

JON E. DEGUILIO, Judge

Allen Stuckey ran over a dead deer while driving on the Indiana Toll Road.His car jerked as he hit the deer, injuring his neck and knee.He then sought uninsured motorist coverage for those injuries—the uninsured motorist being an unknown vehicle that Dr. Stuckey surmises had previously struck and killed the deer. 21st Century Centennial Insurance Company denied his claim, so Dr. Stuckey filed this action. 21st Century has now moved for summary judgment.It contends that the unknown vehicle did not hit Dr. Stuckey, as required by the policy language, and that he does not have a corroborating witness, as also required by the policy when there is no physical contact with the uninsured vehicle.For the following reasons, the Court grants the motion.

I.FACTUAL BACKGROUND

On October 9, 2014, Dr. Allen Stuckey was alone in his car, driving westbound on the Indiana Toll Road near South Bend.He was driving in the right lane behind a semi, and pulled into the left lane to pass.Shortly after pulling into the left lane, he saw a deer laying across the lane.The deer appeared dead, and Dr. Stuckey believed that it may have been hit by a truck.Dr. Stuckey was unable to pull back into the right lane since he was already beside the truck, so he hit the brake for a moment before colliding with the deer.His car pitched up and traveled over the deer.Dr. Stuckey testified that the car threw him in different directions, causing his left knee to hit the steering column and torqueing his neck.Dr. Stuckey continued driving and did not stop at the site of the incident, but he called 911 four or five minutes later to report the deer in traffic.

At the time of the accident, Dr. Stuckey had an auto insurance policy with 21st Century Centennial Insurance Company.That policy provided certain coverage for bodily injuries sustained in an accident with an uninsured motorist.In particular, the policy stated that 21st Century "will pay compensatory damages that an insured is legally entitled to recover from the owner or operator of an uninsured motor vehicle because of bodily injury: a. Sustained by an insured; and b. Caused by an auto accident with an uninsured motor vehicle."[DE 33-2p. 14(internal emphases omitted) ].The policy further defines "uninsured motor vehicle," in pertinent part, as a vehicle that "is a hit-and-run vehicle whose operator or owner cannot be identified and which hits ... a covered auto."Id. p. 15(internal emphases omitted).In addition, the policy states, "When there has been no physical contact with the hit-and-run vehicle, the insured who claims injury or damage must provide corroborating evidence of the existence of the hit-and-run vehicle from a witness other than an insured who is making a claim."Id.

After the incident, Dr. Stuckey submitted a claim to 21st Century.However, 21st Century denied coverage for Dr. Stuckey's bodily injuries.Dr. Stuckey and his wife thus filed this suit.In the first count, they seek coverage for Dr. Stuckey's injuries.In the second count, they assert that 21st Century denied their claim in bad faith. 21st Century removed this action to federal court on the basis of diversity jurisdiction.Discovery closed, and 21st Century has now moved for summary judgment.

II.STANDARD OF REVIEW

Summary judgment is proper when the movant shows that there "is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law."Fed. R. Civ. P. 56(a).A "material" fact is one identified by the substantive law as affecting the outcome of the suit.Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202(1986).A "genuine issue" exists with respect to any material fact when "the evidence is such that a reasonable jury could return a verdict for the nonmoving party."Id.Where a factual record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no genuine issue for trial, and summary judgment should be granted.Matsushita Elec. Indus. Co. v. Zenith Radio Corp. , 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538(1986)(citingBank of Ariz. v. Cities Servs. Co. , 391 U.S. 253, 289, 88 S.Ct. 1575, 20 L.Ed.2d 569(1968) ).In determining whether a genuine issue of material fact exists, this Court must construe all facts in the light most favorable to the non-moving party and draw all reasonable and justifiable inferences in that party's favor.Jackson v. Kotter , 541 F.3d 688, 697(7th Cir.2008);King v. Preferred Tech. Grp. , 166 F.3d 887, 890(7th Cir.1999).

III.DISCUSSION

21st Century moves for summary judgment on both counts.It argues that it owes no uninsured motorist coverage for Dr. Stuckey's injuries under these circumstances, and that it cannot be liable on the bad faith count because its denial of coverage was correct, or at the very least was reasonable.Dr. Stuckey's claims arise under Indiana law, so the Court must resolve the claims as would the Indiana Supreme Court.State Farm Mut. Auto. Ins. Co. v. Pate , 275 F.3d 666, 669(7th Cir.2001).In the absence of controlling precedent by the Indiana Supreme Court, the Court gives great weight to decisions of the state's appellate courts.Id.

The Court begins with the question of whether the injuries were covered under the policy, which is dispositive for both counts. 21st Century advances two arguments on that front.First, it argues that there is no coverage because there is no evidence that a hit-and-run vehicle "hit" Dr. Stuckey's car.Second, it argues that even if the incident would otherwise be covered, Dr. Stuckey does not have a corroborating witness, as the policy requires when there "has been no physical contact with the hit-and-run vehicle."The Court agrees with 21st Century's second argument, but begins with its first argument to put the issues in context.

The policy provides uninsured motorist coverage if a hit-and-run vehicle "hits" an insured vehicle.There is no dispute here that the alleged hit-and-run vehicle did not come into contact with Dr. Stuckey's car, but the parties argue over how expansively the term "hit" can be construed.Indiana courts have held that the term "hit" includes both direct and indirect physical contact.Will v. Meridian Ins. Group, Inc. , 776 N.E.2d 1233, 1235(Ind. Ct. App.2002);Ackles v. Hartford Underwriters Ins. Corp. , 699 N.E.2d 740, 745(Ind. Ct. App.1998);see alsoAllied Fidelity Ins. Co. v. Lamb , 361 N.E.2d 174, 178(Ind. Ct. App.1977).Thus, Indiana courts have stated that coverage could exist if "an unidentified vehicle strikes another vehicle propelling it into the insured's automobile and where the unidentified automobile strikes a telephone pole causing it to strike the insured's automobile."Will , 776 N.E.2d at 1235.Coverage could likewise exist if a hit-and-run vehicle "caused a rock to crash through the window of the insured's vehicle."Id.In Lamb , which involved that situation, the court held that the requirement of physical contact is met if "a substantial physical nexus between the hit-and-run vehicle and the intermediate object is shown and if the transmitted force is continuous and contemporaneous, as when one object hits a second impelling it to strike a third...."361 N.E.2d at 178.These holdings demonstrate that direct physical contact between two vehicles is not required to implicate uninsured motorist coverage.Indiana courts have cautioned, however, that these holdings " ‘should not be interpreted as allowing all types of indirect physical contact to satisfy’ " this requirement.Ackles , 699 N.E.2d at 745 n.4(quotingLamb , 361 N.E.2d at 179 ).

Neither party has cited, nor has the Court located, an Indiana case that addresses the sequence here, where a foreign body enters the roadway, is struck by one vehicle, comes to rest, and is then struck again by the insured's vehicle.As 21st Century argues, the deer was not propelled into Dr. Stuckey's car, as the deer had come to rest for an unknown amount of time before he struck it.The sequence here thus does not match any of the scenarios that Lamb or Will discussed as constituting indirect contact where a hit-and-run vehicle strikes an intermediate object (hitting a second vehicle into the insured's car, knocking a light pole onto the insured's car, or propelling a rock into the insured's car).And as the Seventh Circuit discussed in Milam , it is difficult to describe an insured's car as being hit or struck by another car if the insured's car strikes an object that has already come to rest:

We know that striking is possible at a distance between the striker and the struck, so if the vehicle throws off some object which strikes the insured's vehicle missile-like, the accident is covered by the policy.But when the object comes to rest, and is struck rather than doing the striking—a difference that under the name trespass versus case played a fundamental role in tort pleading until modern times—the language of the policy can no longer be interpreted as providing coverage.

Milam v. State Farm Mut. Auto. Ins. Co. , 972 F.2d 166, 169(7th Cir.1992).If Milam was the last word in this issue, the outcome would be clear.

Since Milam , however, the Indiana court of appeals appears to have adopted a more expansive view.In Will , a load of debris had apparently fallen from a truck and came to rest in the road, where the plaintiff ran into it and suffered injuries.776 N.E.2d at 1237.The court did not require the plaintiff to...