Cottrell et al v. American Family Mutual Insurance Company

Filing 50

OPINION MEMORANDUM AND ORDER IT IS HEREBY ORDERED that Defendants Motion for Summary Judgment [Doc. 21] is GRANTED.A separate judgment in accordance with this Opinion, Memorandum and Order will be entered this same date. 21 Signed by District Judge Henry Edward Autrey on 11/21/17. (CLA)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
NORTHERN DIVISION
ROGER D. COTTRELL and
TERESA M. COTTRELL,
Plaintiffs,
vs.
AMERICAN FAMILY MUTUAL
INSURANCE COMPANY,
Defendant.

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CASE NO: 2:17CV12 HEA

OPINION,MEMORANDUM AND ORDER
This matter is before the Court on Defendant’s Motion for Summary
Judgment [Doc. 21]. Plaintiffs oppose the Motion [Doc. 29].
Facts and Background
This action arises from an automobile accident. Plaintiffs’ claim arises out of a
motor vehicle accident that occurred on October 9, 2014. Plaintiff Roger D.
Cottrell was traveling north on U.S. Highway 61, a four-lane divided highway at
its intersection with County Route OO. Mason Baumgarte was in a pickup truck
on an access road on the east side of Highway 61 at a stop sign. Across from
Baumgarte was a brown car at a yield sign in the median on Highway 61. The
parties have not been able to identify the driver of the brown car present at the
intersection prior to the accident.

Before Baumgarte pulled out onto the highway in his attempt to cross it, he
saw Roger Cottrell’s vehicle on Highway 61 headed northbound toward him in the
right-hand lane. Baumgarte estimated Cottrell’s vehicle was approximately ten car
lengths away from the intersection when he first saw it and he estimated that it
might be traveling approximately five or ten miles an hour faster than the 65 milesper-hour speed limit.
Then the driver of the brown vehicle (the unidentified, uninsured motorist
at issue) waved Baumgarte across the intersection. Baumgarte again checked
oncoming traffic and started to proceed across the highway. Baumgarte testified
that the brown vehicle pulled out onto the highway. The driver of the brown car
pulled out into the northbound passing, left-hand lane and proceeded north on
Highway 61. Independent witness Sylvia Elliott testified that the brown car pulled
out in front of the Baumgarte truck and the brown car was blocking both of the
northbound lanes before leaving the scene at a high rate of speed.
Roger Cottrell’s vehicle then collided with Mason Baumgarte’s vehicle.
According to Roger Cottrell’s deposition testimony, he was close enough to Mason
Baumgarte when Baumgarte pulled out in front of him that he made eye contact
with Baumgarte before Baumgarte pulled out onto Highway 61. Mr. Cottrell was
“very” surprised when Baumgarte pulled out. Mr. Cottrell did not see any other
vehicle pull into the roadway at the intersection of Highway 61 and Route OO.
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But, both parties admitted that the brown car did pull out onto the roadway
blocking the path of the Mason Baumgarte black truck.
On October 10, 2014, Plaintiffs notified American Family of the wreck.
Attorney Templeton sent American Family a demand letter on July 30, 2015.
On October 10, 2014, American Family Casualty Claims Adjuster Jeannine
Bono ordered a copy of the police report, which she obtained later that month. The
police report contains a statement from Roger Cottrell: “I was going north on U.S.
61. He pulled right in front of me. I couldn’t hit the brakes or nothing.” The police
report contains a statement from Mason Baumgarte: “I was stopped at U.S. 61.
There was a brown car on the other side and trying to turn left onto U.S. 61. He
waved me over. I started coming over and the guy pulled in front of me and
headed north on 61. I had to stop in the roadway and this car hit my side.” The
police report contains a statement from witness Sylvia Louise Rousan-Elliott:
“There was a brown car in the crossover. The truck was at the side street and
started to come across. The brown car made a quick left in front of [the] truck. The
truck stopped and the Ford car ran into it.”
On October 15, 2014, Bono obtained a recorded statement from Roger
Cottrell. During his recorded statement Mr. Cottrell stated he was traveling in the
“right slow lane” north on Highway 61 at 65 miles per hour. Mr. Cottrell
described the accident as “I came up on the intersection, I got about maybe fifteen,
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twenty feet from the intersection. I can clearly see this young man looking at me.
He pulls directly out into my path, I T-boned him directly.” When asked if he did
anything to avoid the accident, “slam on your brakes, swerve, do anything like
that” Mr. Cottrell responded “There was no time.” Mr. Cottrell stated “there was
no other cars at that intersection that I could tell.” Mr. Cottrell added that Mr.
Baumgarte pulled out in front of him “like he was trying to beat a train or
something, he was looking right at me.” Mr. Cottrell also stated “I just cannot
believe that that state patrolman did not ticket this boy for failure to yield.”
On October 28, 2014, Ms. Bono documented that she left voicemails for
Mason Baumgarte and witness Sylvia Rousan-Elliott. Ms. Rousan-Elliott stated
she was never contacted by American Family.
On October 29, 2014, Allied Insurance (Mason Baumgarte’s insurance
company) left a voicemail for Ms. Bono indicating Allied assessed 100% liability
for the accident against Mason Baumgarte. American Family closed its file at that
point in time.
On July 30, 2015, Scott Templeton, counsel for Roger and Teresa Cottrell,
sent a non-time limit demand letter for uninsured motorist coverage for Roger
Cottrell’s injuries sustained in the accident, which American Family received on
August 3, 2015. Mr. Templeton’s correspondence reiterated Mr. Baumgarte’s
statement in the police report and indicated Mr. Templeton had contacted Ms.
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Rousan-Elliott, who “corroborated what Mr. Baumgarte said with regard to the
brown vehicle’s actions in connection with this accident.” American Family reopened its claim, acknowledged the demand, and referred the injury portion of the
assessment to Injury Claims Adjuster Laura Burris.
Bono and Rachel Manning, her supervisor, assessed the claim and denied
liability on September 3, 2015, due to having determined that Baumgarte was at
fault in causing the accident.
On February 16, 2016, American Family received a ten-day time limit
demand reasserting the uninsured motorist claim for Roger Cottrell’s injuries.
Bono and Manning again assessed the claim and denied liability on February 18,
2016, again due to Baumgarte’s fault in causing the accident.
Plaintiffs Roger D. Cottrell and Teresa M. Cottrell had seven automobile
policies issued by defendant American Family Mutual Insurance Company. Each
policy provided uninsured motorist coverage in the amount of $100,000.00 per
person and $300,000.00 per accident. In each policy the defendant American
Family Mutual Insurance Company agreed to “pay compensatory damages for
bodily injury which an insured person is legally entitled to recover from the owner
or operator of an uninsured motor vehicle. In each policy the coverage included
coverage for “a hit-and-run vehicle whose operator or owner is unknown and
which causes bodily injury to an insured person.” In each, policy coverage was
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provided where there was no contact between the hit-and-run vehicle and the
vehicle in which the insured was injured.
The brown car at the scene of the October 9, 2014 wreck, which is the
subject of this case, was operated by an unknown person who left the scene; the
owner of the vehicle is unknown; and the brown car is an uninsured motor vehicle
within the meaning of the policies.
Mason Baumgarte stopped on the east side of US Highway 61 intending to
yield to oncoming traffic. Mason Baumgarte was waiting on the driver of the
brown car to do something when the driver of the brown car waved Mason
Baumgarte to go ahead of him.
After Mason Baumgarte entered the intersection, the driver of the brown car
pulled out turning left in front of Mason Baumgarte and cut off Mason Baumgarte.
The brown car accelerated quickly in front of Mason Baumgarte and came to
a stop diagonally in the northbound passing lane.
Sylvia Rousan-Elliott was an independent third-party witness to this wreck.
She testified that “it [the brown car] led to the collision.”
The driver of the brown car waved Mason Baumgarte’s truck across the
road. Then “the brown car fastly went out in front of him [Mason Baumgarte]
making him having to stop in the middle of the northbound 61 lane.”

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After the brown car waved him across the street, Mason Baumgarte had to
stop in a lane reserved for traffic moving 65 miles per hour because the brown car
had turned left in front of him.
Jeannine Bono was initially assigned by American Family on October 10,
2014, to adjust the claim from the wreck. When Bono was assigned she was not
investigating an uninsured motorist claim. Bono closed her file at the end of
October of 2014 after Baumgarte’s insurance company agreed to pay for the
property damage.
Scott Templeton’s July 30, 2015 demand was the first notice of an uninsured
motorist claim. After Scott Templeton’s July 30, 2015 demand, the uninsured
motorist case was assigned to Bono. Bono did no further investigation concerning
the fault of the brown car. After the uninsured motor vehicle case was assigned to
her, Bono did not try to contact any of the witnesses or the highway patrolman.
Bono did not do anything to try to determine the involvement of the brown car.
Bono did not do any further fact investigation before denying the claim on
September 3, 2015.
Scott Templeton renewed the uninsured motor vehicle claim by letter dated
February 16, 2016. In his February 16, 2016, letter Templeton enclosed a copy of
a Petition he was prepared to file. The Petition enclosed with Templeton’s

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February 16, 2016, letter described in detail the conduct of the brown car upon
which the uninsured motor vehicle claim was based.
After receiving the February 16, 2016 Templeton letter and attached
Petition, Bono did not try to contact any witnesses or the highway patrolman to
investigate the claim. After receiving the February 16, 2016, Templeton demand
Bono denied the claim for uninsured motor vehicle insurance within one day and
without any investigation.
Bono knew American Family had a statutory duty to investigate the claim.
If Bono had investigated the claim she would have learned about the brown car’s
involvement in the wreck.
Laura Burris, who was assigned by American Family to evaluate Roger
Cottrell’s injuries, closed her file without completing the evaluation. No one with
American Family ever completed the evaluation of the bodily injury suffered by
Roger Cottrell in this wreck.
The American Family Corporate Representative testified that she sought an
opinion of in house counsel “on the wave out situation.” A written opinion of in
house counsel was received by American Family.
American Family knew of the Statutory duties under the Missouri Improper
Claims Practices Act found at Section 375.1007 RSMo. American Family knew of

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the Regulatory duties under the Missouri Improper Claims Practices Act found at
Section 20 CSR 100-1.050.
The wreck was a violent T-bone collision which destroyed both cars.
Roger Cottrell had a head injury, lost consciousness, and had a loss of memory.
Standard of Review
The Court may grant a motion for summary judgment if “the pleadings,
depositions, answers to interrogatories, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to any material fact and
that the moving party is entitled to judgment as a matter of law.” Fed.R.Civ.P.
56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265
(1986). The substantive law determines which facts are critical and which are
irrelevant. Only disputes over facts that might affect the outcome will properly
preclude summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248,
106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Summary judgment is not proper if the
evidence is such that a reasonable jury could return a verdict for the nonmoving
party. Id.
A moving party always bears the burden of informing the Court of the basis
of its motion. Celotex, 477 U.S. at 323. Once the moving party discharges this
burden, the nonmoving party must set forth specific facts demonstrating that there
is a dispute as to a genuine issue of material fact, not the “mere existence of some
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alleged factual dispute.” Fed.R.Civ.P. 56(e); Anderson, 477 U.S. at 247. The
nonmoving party may not rest upon mere allegations or denials of its pleadings.
Anderson, 477 U.S. at 256.
In passing on a motion for summary judgment, the Court must view the facts
in the light most favorable to the nonmoving party, and all justifiable inferences
are to be drawn in its favor. Anderson, 477 U.S. at 255. The Court’s function is not
to weigh the evidence but to determine whether there is a genuine issue for trial. Id.
at 249.
Summary judgment is appropriate when, viewing the facts and inferences in
the light most favorable to the nonmoving party, the pleadings, the discovery and
disclosure materials on file, and any affidavits show that there is no genuine
dispute as to any material fact and that the movant is entitled to judgment as a
matter of law. Fed. R. Civ. P. 56(c). The plain language of Rule 56(c) mandates the
entry of summary judgment, after adequate time for discovery and upon motion,
against a party who fails to make a showing sufficient to establish the existence of
an element essential to that party's case, and on which that party will bear the
burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). “The
movant ‘bears the initial responsibility of informing the district court of the basis
for its motion, and must identify ‘those portions of [the record] ... which it believes
demonstrate the absence of a genuine issue of material fact.’ ” Torgerson v. City of
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Rochester, 643 F.3d 1031, 1042, (8th Cir. 2011) (en banc) (quoting Celotex, 477
U.S. at 323). If the movant does so, “the nonmovant must respond by submitting
evidentiary materials that set out ‘specific facts showing that there is a genuine
issue for trial.’ ” Id. (quoting Celotex, 477 U.S. at 324). In order to survive a
motion for summary judgment, “the nonmoving party must ‘substantiate his
allegations with sufficient probative evidence [that] would permit a finding in [her]
favor based on more than mere speculation, conjecture, or fantasy.’” Barber v. C1
Truck Driver Training, LLC, 656 F.3d 782, 801 (8th Cir. 2011) (quoting Putman v.
Unity Health Sys., 348 F.3d 732, 733–34 (8th Cir. 2003)) (internal quotation marks
omitted).
“The inquiry performed is the threshold inquiry of determining whether
there is the need for a trial—whether, in other words, there are any genuine factual
issues that properly can be resolved only by a finder of fact because they may
reasonably be resolved in favor of either party.” Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 250 (1986). If “reasonable minds could differ as to the import of the
evidence,” summary judgment should not be granted. Anderson, 477 U.S. at 251.
Discussion
Under Missouri law, the right of an injured party to recover from an
uninsured motorist carrier arises from the insurance contract, rather than in tort.
But, the determination of whether the uninsured motorist carrier will be obligated
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to pay money damages to the insured depends on whether the alleged uninsured
motorist is liable in tort to the injured party. Oates v. Safeco Ins. Co. of America,
583 S.W.2d 713, 715 (Mo.1979).
In order to establish that the unknown motorist is “legally liable to the
insured,” Plaintiff must prove that the unknown motorist had a duty to protect him
from injury, that the unknown motorist breached that duty, and that the unknown
motorist's breach was the proximate cause of Plaintiff's injuries. Silva v. Const. &
Abatement Serv., Inc., 238 S.W.3d 679, 681 (Mo.Ct.App.2007). To establish
causation, a plaintiff must demonstrate that a defendant's conduct was both the
cause-in-fact and the proximate, or legal, cause of the injury. Wright v. Barr, 62
S.W.3d 509, 524 (Mo.Ct.App.2001). Proximate cause is a question of law for the
trial court. Townsend v. Eastern Chemical Waste Systems, 234 S.W.3d 452, 466
(Mo.Ct.App.2007).
After review of the cited Missouri authorities, the Court finds that the
Missouri Supreme Court's decision in Horton v. Swift controls. 415 S.W.2d 801
(1967). The rule adopted in Horton maintains that
Where a second actor has or should have become aware of the
existence of a potential danger created by the negligence of an original tortfeasor, and thereafter, by an independent act of negligence, brings about an
accident, the first tort-feasor is relieved of liability, because the condition
created by him was merely a circumstance of the accident and not its
proximate cause.

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Id. at 803. See also, Pettiford v. Sousley, No. 07-0014CV-W-DW, 2008 WL
3200755, at *1–3 (W.D. Mo. Aug. 5, 2008).
In Horton, the Missouri Supreme Court found that a beckoning gesture by
taxicab driver was not the proximate cause of injuries suffered by the plaintiff
when she crossed a roadway, opened the cab door in traffic and was subsequently
injured when a truck struck her hand. Instead, Plaintiff's injury was caused by her
act in opening the door so close to the truck and the movement of the truck at that
time.
Here, like Horton, the unknown motorist's gesture to Baumgarte to enter the
roadway was not the proximate cause of the accident, but instead the accident was
caused by Baumgarte’s subsequent act of entering the intersection in which
Plaintiff Roger Cottrell was traveling so closely to Baumgarte that he was unable
to avoid the inevitable collision.
Since Defendant had no duty to pay Plaintiff’s claims, its actions were not
without reasonable cause or excuse and therefore, its actions are a fortiori not
vexatious.
Conclusion
Based upon the foregoing analysis, there are no genuine disputes as to any
material fact and based on those undisputed facts, Defendant is entitled to
judgment as a matter of law.
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Accordingly,
IT IS HEREBY ORDERED that Defendant’s Motion for Summary
Judgment [Doc. 21] is GRANTED.
A separate judgment in accordance with this Opinion, Memorandum and
Order will be entered this same date.
Dated this 21st day of November, 2017.

________________________________
HENRY EDWARD AUTREY
UNITED STATES DISTRICT JUDGE

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