Cleland v. State Farm Mutual Automobile Insurance Company

Filing 39

OPINION AND ORDER denying 27 Motion for Summary Judgment, denying as moot 32 First RULE 56 MOTION to Strike, denying as moot 35 Motion to Supplement and denying as moot 37 First MOTION to Supplement. Signed by Judge Philip P Simon on 4/11/17. (nal)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
HAMMOND
TIMOTHY D. CLELAND,
Plaintiff,
v.
STATE FARM INSURANCE
COMPANY,
Defendant.

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CAUSE NO. 2:14-CV-266-PPS-PRC

OPINION AND ORDER
Timothy D. Cleland brought this action against his own automobile insurer, State
Farm, for allegedly breaching the underinsured motorist coverage provision of its
policy. Cleland’s vehicle was struck from behind causing injuries to Cleland. The
insurance company of the motorist who struck Cleland’s vehicle only covered $100,000
of Cleland’s damages resulting from the accident, which wasn’t enough to cover
Cleland’s losses. As a result, Cleland sought additional coverage from State Farm,
which refused to pay. State Farm seeks summary judgment on the issue of coverage. It
argues that it is not required to pay Cleland’s excess damages because State Farm’s
underinsured motorist coverage provision only applies to damages Cleland is legally
entitled to recover from the other driver, which in this case is nothing because the other
driver was neither negligent nor in violation of Indiana law. So the central issue is
whether the underinsured motorist was negligent and/or in violation in Indiana law.
Because I think the evidence presented to me on summary judgment cuts both ways,

creating a contested material issue of fact, I must deny State Farm’s motion and leave
the issue for a jury to decide.
Background
This suit arises out of a motor vehicle accident in which Cleland was a passenger
in a car insured by State Farm and which was owned by Indiana Botanical Gardens,
Cleland’s company. [DE 28-2 at ¶¶3-4.] At the time of the accident, Cleland’s car was
stopped at a drive-thru at a White Castle restaurant when it was struck in the rear by a
1995 Ford F150 driven by George Wise. [Id. at ¶4.] Wise’s truck was stopped three feet
behind Cleland’s vehicle in the drive-thru when it suddenly began moving forward and
hit the back of Cleland’s car, bounced backwards, and then hit Cleland’s car a second
time. [DE 30 at 26.]
Wise had an insurance policy issued by Farmers Insurance Group with liability
policy limits of $100,000 per person. [Id. at ¶8.] Cleland’s policy with State Farm
provided underinsured motorist coverage up to $2,000,000.00 per person. [DE 28-2 at
¶10.] Cleland alleges the State Farm has breached this provision. This much is
undisputed.
Cleland and Wise have different opinions regarding the cause and severity of the
collision. Wise testified at his deposition that he had his brakes on when stopped at the
drive-thru behind Cleland, but his brakes failed causing his truck to suddenly move
forward. Wise testified that he tried pumping the brakes, but that didn’t work and he
hit the back of Cleland’s car, bounced off of it, and then moved forward again and hit it
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a second time. [DE 30 at 114.] After he struck Cleland’s car the second time, Wise put
his truck in park. [Id.] Wise testified that he never put his foot on the gas. [Id. at 118.]
He says he had no problem with his brakes before he got to the White Castle and that he
was able to drive his truck home, with the brakes working, after the accident. [Id.]
When asked to describe the two impacts with Cleland’s car, Wise testified that the first
impact was “[j]ust a bump” and that the second impact was “[t]he same as the first,
hardly nothing.” [Id. at 116.]
Cleland tells an entirely different story. Cleland rated the impact of the first
collision as an eight on a scale of one to ten, with one being very insignificant and ten
being very hard. [DE 30 at 26.] He testified that the first impact caused his vehicle to
lunge forward approximately fifteen to twenty feet. [Id.] He testified that the second
impact was about a seven or an eight on the scale and that it again moved his vehicle
forward fifteen to twenty feet. [Id. at 27.]
As far as the state of Wise’s truck at the time of the accident, Wise testified that
he took his truck in for service “[w]henever it needed something” and had his brakes
checked “[o]nly when they were worked on.” [DE 30 at 120.] Wise’s truck was a 1995
F150 that he bought used a few years before the accident. [Id. at 112-113.] He testified
that he had the brakes worked on at some point before the accident for regular wear
and tear, but that was probably a couple of years before the accident. [Id. at 113, 120.]
When asked what kinds of problems he had with the brakes that previously required
service, Wise said “[p]robably just discs repaired or replaced, the pads” and couldn’t
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identify any other work that would have been done on his brakes. [Id.] After the
accident, Wise had his truck towed from his home to a repair shop in Hammond,
Indiana where Wise’s master cylinder was repaired. [Id. at 115-116.] Wise testified that
he had never had his master cylinder fail before. [Id. at 113.]
Cleland tells me that as a result of the accident, he has incurred significant
medical expenses that exceed the coverage of Wise’s policy. [DE 5 at ¶6.] Cleland
sought payment for the excess medical expenses from State Farm under the
underinsured motorist coverage provision of his policy but alleges that State Farm has
failed to pay the amount he requested in breach of that provision. [DE 12 at ¶6.]
Cleland sued State Farm in state court for breach of contract seeking damages to
compensate him for his pain, suffering, emotional distress, impairments, temporary and
permanent disability, medical expenses, and other damages that he is entitled to recover
by reason of the accident including the aggravation of his prior existing medical
conditions and punitive damages. [DE 5.] State Farm timely removed the action to this
Court. [DE 1.] Though discovery still is ongoing, State Farm moved for summary
judgment on the issue of coverage under its underinsured motorist coverage provision.
[DE 27.]
Analysis
Summary judgment is proper “if 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 genuine dispute about a material fact exists only “if the
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evidence is such that a reasonable jury could return a verdict for the non-moving
party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A nonmoving party like
Cleland is not entitled to the benefit of “inferences that are supported by only
speculation or conjecture.” Argyropoulos v. City of Alton, 539 F.3d 724, 732 (7th Cir. 2008)
(citations and quotations omitted).
The issue is whether Wise was negligent or in violation of Indiana law, which
resulted in his car colliding with Cleland’s car. In other words, the underinsured policy
only kicks in if Wise is liable to Cleland. It is unlawful to operate a motor vehicle in
Indiana with an inadequate braking system. I.C. § 9-19-3-1. One who violates this
safety provision faces a rebuttable presumption of negligence. Davison v. Williams, 242
N.E.2d 101, 104 (Ind. 1968). Based on the evidence before me, there are too many
questions of fact to decide the issue on summary judgment. The briefing and evidence
relied upon simply raise too many questions regarding the cause of the accident from
which Cleland’s alleged injuries resulted.
First, it is disputed whether Wise’s brakes failed immediately before the accident.
Wise claims that they did, but he also testified that he didn’t experience any issues
before the accident or immediately after when he safely drove home in his truck
without incident. Second, it is disputed whether the alleged failure of Wise’s brakes
was unforeseeable. Wise’s testimony regarding the maintenance of his truck is opaque.
His truck was approximately 17 years old at the time of the accident. He testified that
he bought it used a few years before the accident and that he only had the brakes check
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when they were being worked on for something else. But he was unable to identify
definitively the types of service and repairs he had done to his truck or when the service
was completed except that he had his brakes worked on for regular wear and tear a
couple of years before the accident. All of this raises a question of fact about the state of
Wise’s truck at the time of the accident and whether Wise was keeping the truck in
good working order in compliance with Indiana law. Third, Cleland and Wise’s
account of the severity of the accident differ greatly. Cleland testified that his car was
jolted forward at least thirty feet by the two impacts with Wise’s truck, while Wise
testified that it was merely a bump, which further raises questions of fact regarding
what exactly could have and did cause the accident.
State Farm argues that Cleland is attempting to manufacture a question of fact
through self-serving testimony, DE 36 at 8, which is not sufficient to defeat a motion for
summary judgment. State Farm is flat wrong in this regard. Many years ago the
Seventh Circuit put to rest the old saw that self-serving testimony cannot be used to
beat summary judgment. So long as testimony is based on personal knowledge, the fact
that it is labeled“self-serving” is neither here nor there. Payne v. Pauley, 337 F.3d 767,
772 (7th Cir. 2003). “‘Self-serving’ deposition testimony may satisfy a party’s
evidentiary burden on summary judgment.” Whitlock v. Brown, 596 F.3d 406, 411 (7th
Cir. 2010) (emphasis in original). Cleland’s testimony regarding what he experienced
and observed at the time of the accident is precisely the type of “self serving” testimony
that may be considered in these circumstances. Id. In addition, as I already noted, the
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factual disputes that I have identified are not created by speculative testimony from
Cleland regarding the cause of the accident, but rather both Cleland and Wise’s
testimony regarding their experiences during the accident as well as Wise’s testimony
regarding the state and service history of his truck.
Because of these genuine disputes about material facts, I must deny State Farm’s
motion for summary judgment. As a final matter, I want to acknowledge the several
motions pending that are related to the parties’ summary judgment briefing asking me
to either strike certain evidence or allow the parties to supplement their designation of
evidence. [See DE 32, 35, 37.] Because I did not rely on any of the evidence at issue in
these motions, they will be denied as moot. I will note, however, that even if I had
considered this evidence—specifically, the repair shop receipt that shows that there was
a problem with Wise’s truck’s master cylinder—it raises more questions than it
answers. Even if the master cylinder was shot, when did it go bad? Should Wise have
been aware of problem with the master cylinder prior to the accident? Did Wise only
go to the repair shop once the problem led to an accident? And what about Cleland’s
expert who says that if the master cylinder went out, the action of the brake pedal
would have been nothing like it was described by Wise in his deposition? In short,
there is an abundance of questions that a jury needs to sort out even if I were to
consider the opinions contained in the disputed repair shop receipt, the admissibility of
which is better addressed in a properly presented pretrial motion under Daubert v.
Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993) and Federal Rule of Evidence 702.
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Conclusion
For the aforementioned reasons, the Court DENIES Defendant State Farm’s
Motion for Summary Judgment, DE 27, and DENIES AS MOOT Plaintiff’s Motion to
Strike, DE 32, Defendant’s Motion for Leave to File Supplemental Designation of
Evidence in Support of Motion for Summary Judgment, DE 35, and Plaintiff’s Motion to
Supplement Its Response Opposing Defendant’s Motion for Summary Judgment, DE
37.
SO ORDERED.
ENTERED: April 11, 2017.
_s/ Philip P. Simon
PHILIP P. SIMON, JUDGE
UNITED STATES DISTRICT COURT

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