CHARLES S. MILLER, Jr., Magistrate Judge.
Before the court is defendant's motion for summary judgment, filed on April 17, 2015. On May 13, 2014, both parties consented to proceed before a magistrate judge. For the reasons outlined below, the motion is granted.
Plaintiff, Timothy Moeller ("Moeller"), alleges that on December 8, 2012, he was operating a semi-tractor and pulling a tanker loaded with crude oil traveling eastbound on McKenzie County Road when an unidentified semi-tractor drifted into his lane causing him to move his semi-tractor as far as he could to the right side of the road to avoid a collision which ultimately caused his semi-tractor to roll on its side. Moeller reported the incident to his employer, Powerline Transport LLC, who notified law enforcement. McKenzie County Deputy Sheriff Michael Ficken ("Deputy Ficken") responded to the scene and took Moeller's statement.
The semi tractor and trailer being operated by Moeller was insured under an insurance policy issued by Zurich American Insurance Company of Illinois ("Zurich") with uninsured motorist coverage limits of $100,000,00. Moeller filed a claim under the uninsured motorist insurance policy which was denied.
Moeller initiated this action on April 1, 2014 in the state court of McKenzie County. Zurich removed on April 29, 2014, invoking the court's diversity jurisdiction.
On April 17, 2015, Zurich moved for summary judgment, arguing that Moeller has not presented corroborating, competent evidence other than his testimony of his version of the alleged accident on December 8, 2015, and as such, his uninsured motorist claim should be dismissed as a matter of law. Moeller opposed summary judgment, relying on the deposition of Deputy Ficken, the affidavit of Piccola Clark, and the notes made in the claim file by a Zurich claims representative in support of his position that there is competent, corroborating evidence which creates a material issue of fact.
Summary judgment is appropriate when the evidence, viewed in a light most favorable to the non-moving party, indicates that no genuine issues of material fact exist and that the moving party is entitled to judgment as a matter of law.
The court must inquire whether the evidence presents a sufficient disagreement to require the submission of the case to a jury or whether the evidence is so one-sided that one party must prevail as a matter of law.
Based on the parties' submissions, it appears that both parties agree that the Zurich insurance policy is a valid contract and that North Dakota contract law applies.
It is well-established in North Dakota that the interpretation of an insurance policy is a question of law.
The Zurich insurance policy contained a "North Dakota Uninsured Motorists Coverage" endorsement. (Docket No. 23, Ex. 1). Section A of the endorsement, subsection 1, states:
Moeller concedes that he cannot rely solely upon his own testimony to obtain coverage under the uninsured portion of the Zurich insurance policy. However, Moeller asserts that he is not relying upon his own testimony but rather the testimony of Deputy Ficken, Piccola Clark and documents created and/or maintained by insurance claim representatives to corroborate his version of the December 8, 2012 accident. Moeller further argues that a jury presented with this evidence could reasonably conclude that Moeller was forced off the road by another vehicle which would entitle him to uninsured motorist benefits; therefore creating a dispute of material issue of fact.
Moeller contends that the deposition testimony of Deputy Ficken is competent, corroborating evidence of Moeller's uninsured motor vehicle claim. In support of this contention, Moeller relies on the following excerpt from Deputy Ficken's deposition:
(Docket No. 29, Ex. 1, Transcript of Deputy Ficken p. 29)
(Docket No. 29, Ex. 1, Transcript of Deputy Ficken p. 29). Moeller asserts that Deputy Ficken essentially agreed that the scene of the accident was consistent with Plaintiff Moeller being forced off the road and his testimony is competent evidence that corroborates Moeller's version of the accident.
Moeller also asserts that the affidavit of Piccola Clark and the copy of her AT&T phone records are competent, corroborating evidence which supports Moeller's version of the accident. Specifically, Moeller points out that Clark stated in her affidavit that Moeller called her twice immediately after the accident on December 8, 2012. (Docket No. 29, Ex. 2, ¶ 6). She also stated that Moeller told her that "he was forced to move over to avoid a collision with the oncoming truck, since the other truck was not moving over." (Docket No. 29, Ex. 2, ¶ 8).
Moeller further contends that the records of communications of the claim representatives of the Zurich insurance policy are competent, corroborating evidence of Moeller's version of the accident. In support of this argument, Moeller relies on three entries. The first claim entry which was filed sometime between December 10, 2012 and February 11, 2013, states:
(Docket No. 29, Ex. 7). Moeller asserts that this entry corroborates Moeller's report that the phantom vehicle forced him off the road.
Moeller also filed a printout of a conversation occurring between two claim representatives regarding the accident. (Docket No. 29, Ex. 8). Moeller specifically points to Dana Koepp's statement entered on December 10, 2012:
Moeller argues that these entries were made as part of Koepp's investigation into the accident and that the entries are documentation that the accident occurred as the result of the driving conduct of the phantom vehicle.
Zurich argues that Moeller's claim for uninsured motorist benefits fails as a matter of law because he has not provided competent, corroborating evidence to support his version of the December 8, 2012 accident, as required under the insurance policy. Zurich further argues that the evidence presented by Moeller should not be considered corroborating, competent evidence because it is all based on Moeller's own statements and under the policy it must be independent of his account.
Zurich contends that Moeller's reliance on the deposition testimony of Deputy Ficken is misguided as the portion of testimony Moeller cites was taken out of context. Zurich points out that Moeller did not cite the question and answer in between the two questions Moeller did cite, which reads:
(Docket No. 23, Ex. 4, Transcript of Deputy Ficken p. 29). Zurich argues that Deputy Ficken's deposition testimony that Moeller relies on as corroborative evidence was not based on the physical evidence he found at the scene but based solely on the statements Moeller made to him. Therefore, Zurich insists that Deputy Ficken's deposition testimony cannot be considered competent, corroborating evidence.
In regard to the affidavit of Piccola Clark and any notes made in the claim file, Zurich argues that these are not competent, corroborating evidence because they are based on statements made by Moeller himself and not from any first hand knowledge of the Piccola Clark or the claim representatives.
The court has reviewed the entire deposition of Deputy Ficken and does not find that his testimony corroborates Moeller's version of the accident. As previously noted, Deputy Ficken testified that Moeller communicated to him that a vehicle had moved over to some portion of his roadway which caused him to go into the ditch. Deputy Ficken also agreed that the position of the truck and the tire marks would have been consistent with what Moeller had told him. However, Deputy Ficken also testified that he did not know if another truck was there at the time of the accident. Furthermore, Deputy Ficken testified the following:
(Docket No. 23, Ex. 4, Transcript of Deputy Ficken p. 15).
(Docket No. 23, Ex. 4, Transcript of Deputy Ficken pp. 21-22).
Deputy Ficken's testimony only confirms what Moeller told him about the direction of travel of his vehicle as it went off the road, which was consistent with any number of things including Moeller falling asleep or being otherwise inattentive, and does not corroborate the presence of another vehicle. Also, despite the freshness of the snow, Deputy Ficken did not see any tracks from another truck that would be consistent with Moeller's statement, and he concluded "I didn't view it as a hit-and-run or he was run off the road."
The court has also reviewed the affidavit of Clark, who has periodically resided with Moeller since 2004 and has two children with him. In summary, she stated that Moeller called her twice on December 8, 2012 and told her he was forced to move over to avoid a collision with the oncoming truck, since the truck was not moving over. Clark's statements in her affidavit do not corroborate the facts alleged by Moeller. Her statements simply reiterate Moeller's own statements about what occurred.
Finally, the court has also reviewed the documentation submitted by the claim representatives. These entries are not evidence that the accident occurred as the result of the driving conduct of the phantom vehicle as suggested by Moeller. They merely reflect what Moeller reported to either Deputy Ficken or to the claim representatives and what they noted in the file. There is no evidence that the claim representatives did their own investigation into the accident besides looking at the accident report and speaking with Moeller.
Moeller would like the court to accept that his statements to various people (Deputy Ficken, Piccola Clark, and the claims representatives) after the accident as competent, corroborating evidence of the facts of the accident. However, the court agrees with Zurich that this is insufficient and that the plain meaning of the policy language requires that the competent, corroborating evidence derive from a source independent of Moeller's account of the facts.
Other courts construing similar policy or statutory language appear to have come to the same conclusion.
In short, after viewing the evidence presently before the court in the light most favorable to Moeller and drawing all reasonable inferences in Moeller's favor, the court finds that there is no evidence, besides Moeller's own testimony, demonstrating that Moeller's vehicle tipped on its side in response to negligent action taken by a phantom vehicle. In view of Moeller's failure to offer sufficient competent, corroborating evidence of the accident the court concludes that Zurich properly denied coverage under the uninsured motorist policy.
For the reasons set forth above the court finds that Zurich is entitled to judgment as a matter of law. Therefore, Zurich Insurance `s Motion for Summary Judgment (Doc. No. 20) is
