Moeller v. Zurich American Insurance Company of Illinois (NAIC 15535)

Filing 37

ORDER by Magistrate Judge Charles S. Miller, Jr. granting 20 Motion for Summary Judgment. (ST)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NORTH DAKOTA
NORTHWESTERN DIVISION
Timothy E. Moeller,
Plaintiff,
vs.
Zurich American Insurance Company
of Illinois, (NAIC 1535),
Defendant.

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ORDER RE MOTION FOR
SUMMARY JUDGMENT

Case No. 4:14-cv-046

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.
I.

BACKGROUND
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 semitractor 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

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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.1 In his complaint he alleged
“[t]hat as a result of the negligence and carelessness of the ‘phantom driver’ causing said semitractor and trailer to overturn, Plaintiff Moeller sustained severe and permanent injuries to his
body[.]” Moeller seeks to recover in excess of $50,000.00 for uninsured motorist benefits; statutory
interest on all accrued claims; and reasonable attorney fees.
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.
II.

STANDARD OF REVIEW
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. Davison v. City of Minneapolis, Minn., 490 F.3d
648, 654 (8th Cir. 2007); see Fed. R. Civ. P. 56(c). Summary judgment is not appropriate if there
are factual disputes that may affect the outcome of the case under the applicable substantive law.
1

Moeller originally brought separate lawsuits in state court against Zurich American Insurance Company
of Illinois and Zurich American Insurance Company. After removal, the cases were consolidated into a single case.
(Docket No. 13). However, on May 19, 2015 the court entered an order adopting a stipulation of dismissal (Docket
No. 34) and dismissed the claims against Zurich American Insurance Company with prejudice.

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Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). An issue of material fact is genuine if
the evidence would allow a reasonable jury to return a verdict for the non-moving party. Id.
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. Diesel Mach., Inc. v. B.R. Lee Indus., Inc., 418 F.3d 820, 832 (8th Cir.
2005). The moving party bears the burden of demonstrating an absence of a genuine issue of
material fact. Simpson v. Des Moines Water Works, 425 F.3d 538, 541 (8th Cir. 2005). The nonmoving party “may not rely merely on allegations or denials in its own pleading; rather, its response
must . . . set out specific facts showing a genuine issue for trial.” Fed. R. Civ. P. 56(e)(2). The court
must consider the substantive standard of proof when ruling on a motion for summary judgment.
Anderson, 477 U.S. at 252.
III.

DISCUSSION
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. Close v. Ebertz, 1998 ND 167, ¶ 12, 583 N.W.2d 794. The standard for construing
an insurance contract in North Dakota is as follows:
Our goal when interpreting insurance policies, as when construing other contracts,
is to give effect to the mutual intention of the parties as it existed at the time of
contracting. We look first to the language of the insurance contract, and if the policy
language is clear on its face, there is no room for construction. If coverage hinges on
an undefined term, we apply the plain, ordinary meaning of the term in interpreting
the contract. While we regard insurance policies as adhesion contracts and resolve
ambiguities in favor of the insured, we will not rewrite a contract to impose liability
on an insurer if the policy unambiguously precludes coverage. We will not strain the
definition of an undefined term to provide coverage for the insured. We construe
insurance contracts as a whole to give meaning and effect to each clause, if possible.
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The whole contract is to be taken together to give effect to every party, and each
clause is to help interpret the others.
K & L Homes, Inc. V. American Family Mut. Ins. Co., 2013 ND 57, ¶ 8, 829 N.W.2d 724 (quoting
Zieglemann v. TMG Life Ins., 2000 ND 55, ¶ 6, 607 N.W.2d 898 (citations omitted)). “Exclusions
from coverage in an insurance contract must be clear and explicit and are strictly construed against
the insurer.” Tibert v. Nodak Mut. Ins., 2012 ND 81, ¶ 9, 816 N.W.2d 31 (quoting Myaer v. Nodak
Mut. Ins., 2012 ND 21, ¶ 9, 812 N.W.2d 345). Although a policy’s exclusionary clauses are strictly
construed, under North Dakota law, this court will not rewrite a contract to impose liability on the
insurer when the policy unambiguously precludes coverage. K & L Homes, Inc. at ¶ 8. Tibert, at
¶ 9; Schleuter v. Northern Plains Ins., 2009 ND 171, ¶ 8, 772 N.W.2d 879.
A.

The Zurich Insurance Policy

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:
1.

We will pay all sums the “insured” is legally entitled to recover as
compensatory damages from the owner or driver of an “uninsured motor
vehicle”. The damages must result from “bodily injury” sustained by the
“insured” caused by an “accident”. The owner’s or driver’s liability for these
damages must result from the ownership, maintenance or use of the
“uninsured motor vehicle”.

Id. As it relates to coverage when neither the driver nor owner can be identified, Section F(3)(c)(2)
of the Zurich insurance policy defines an “uninsured motor vehicle” as follows:
C.

That is a hit-and-run vehicle and neither the driver nor owner can be
identified. The vehicle must either:
(1)

Hit an “insured”, a covered “auto” or a vehicle an “insured” is
“occupying”; or

(2)

Cause “bodily injury” to an “insured” without hitting an “insured”,
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a covered “auto” or a vehicle an “insured” is “occupying”, provided
the facts of the “accident” can be corroborated by competent
evidence other than the testimony of any person having a claim under
this or any other similar insurance as the result of such “accident”.
Id. It is undisputed that there was no collision or contact between Moeller’s vehicle and the
phantom vehicle.2 Therefore, the question before this court is whether Moeller has produced
competent, corroborating evidence, other than his own testimony, which supports his version of the
December 8, 2012 accident, which would allow him to obtain uninsured motorist benefits.
B.

Evidence claimed by Moeller to be competent and corroborating

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.
1.

Deposition testimony of Deputy Ficken

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:
Q.

Okay. And so he did communicate to you that a vehicle had moved

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See (Docket 1, Ex. 1, p-2). Plaintiff states in the complaint that “[t]here was no contact made between the
two semi tractors.”

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over to at least a portion of his roadway that caused him to go into the ditch?
A.

That would be fair (nodding affirmatively).

(Docket No. 29, Ex. 1, Transcript of Deputy Ficken p. 29)
Q.
But if Mr. Moeller told you a vehicle moved over - or a truck
didn’t move over far enough and his truck was in the ditch, was the
pos - the - the position of the truck and the tire marks that you saw
consistent with what he told you?
A.

Yes.

(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.
2.

Affidavit of Piccola Clark

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).
3.

Claim representative’s evidence

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
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was filed sometime between December 10, 2012 and February 11, 2013, states:
IV was slowing to stop at the highway. OV was taking over the road so IV got closer
to the edge as to leave the OV space. The conditions were icy and the IV slipped off
the road and...3
(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:
per report, another veh (assuming coming from opp direction) was all over the road,
insd moved as close to the right as possible and slid off a bank, trailer overturned on
to (assuming) right side.
Id. Moeller also submitted documentation of entries made by Dana Koepp on March 11, 2013 and
March 29, 2013. The March 29, 2013 entry states “I do not see a UMBI exposure. It appears
insured driver caused the accident.” (Docket No. 29 Ex. 9). In regards to the accident, the March
23, 2015, entry reports “he was ‘forced’ off the road by another driver passing him. [H]e has read
the police report it was wrong.” Id.
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.

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Docket No. 29, Ex. 7 appears to be a print out of a claim entry that was entered on the computer. Because
it is a screenshot of a computer page, the court cannot read what the claim says after “and...”

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C.

Zurich’s argument against the claimed corroborating evidence

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:
Q.
And from your review of the accident scene, what you saw
would have been consistent with that?
A.
It would have been consistent with him moving over, yes. I – I
still don’t know if there was another truck there at the time.
(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

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made by Moeller himself and not from any first hand knowledge of the Piccola Clark or the claim
representatives.
D.

Court’s analysis

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:
Q.
Did you see any marks from the other truck that he referred
to that was coming from the other way on the road –
A.

No, there wasn’t.
MR. SCHAFER: Objection. Foundation.

By MR. STORSLEE:
Q.
Okay. Did you – did you look to see if there were any other tracks on
the roadway, of either him slamming on the brakes or another vehicle
approaching or anything like that?
A.

I did.

Q.

And did – what did you find?

A.

I didn’t see anything other than his tracks.

Q.

Okay. And tell us kind of how those tracks appeared to you
on the road.

A. It appeared that his tracks, as he was traveling eastbound,
slowly – and it was fairly fresh snow so there wasn’t a lot of other
tracks on the road. His tracks, you know, gradually went over
to the right along the ditch line and, as you can see in some of
these photos, as he got to the ditch line –there is a fairly decent
slope on this roadway. As he got to the ditch line, it appears that
the trailer tires started to slide and just slid down into the ditch.
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(Docket No. 23, Ex. 4, Transcript of Deputy Ficken p. 15).
Q.
Did he appear to be upset when you got there about this other truck
that the – about causing this accident? Was he upset about this other truck
at all or –
A.
I remember him being upset, may per se not – not so – he wasn’t
upset at the other truck enough to the fact where I believed that I should
go try to find this other truck and where I believed that this other truck
caused the accident.
I looked at this accident as basically an accident. It was hard to
see the roadway. The roadway was fair – fairly narrow. And, by the
way, his truck was – it slid into the ditch. I didn’t view it as a hit-andrun or he was ran off the road.
(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.” Id.
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
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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. See, e.g., Burmeister v. State Farm Insurance Company, 966 P.2d 921 Ct. App. Wash.
1998) (“[c]orroborating evidence must tend to verify the claimant’s version of the facts, it is
something which leads an impartial and reasonable mind to believe that material testimony is true,
testimony of some substantial fact or circumstance independent of a statement of a witness.”
(internal citations omitted)); Ellison v. Nationwide Mutual Insurance Company, 600 S.E.2d 229 (Ct.
App. W. Va. 2004) (holding driver’s statement that second vehicle was proximate cause of accident,
without more, was insufficient evidence to support passenger’s claim for uninsured motorist
coverage; no one else saw the accident and the investigating officer found no independent evidence
that suggested second vehicle was present); Powell v. Viking Insurance Company, 722 P.2d 1343,
1348 (Wash. App. 1986) (“[c]orroborating evidence, as used in the statute, means evidence that
tends to strengthen or confirm the testimony of the insured and/or other claimants...[w]ithout
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independent corroborating evidence, there can be no coverage.”). Moeller cites only one case in
support of his position, Mason v. State Farm Mut. Auto. Ins. Co., 2010 WL 2870667, U.S. Dist. Ct.,
E.D. Mo., July 19, 2010). That case, however, is distinguishable because there was corroborating
evidence in that case independent of the account of the insured.
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.
IV.

CONCLUSION
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 GRANTED.
Moeller’s complaint shall be DISMISSED WITH PREJUDICE.
JUDGMENT SHALL BE ENTERED ACCORDINGLY.
Dated this 2nd day of October, 2015.
/s/ Charles S. Miller, Jr.
Charles S. Miller, Jr.
United States Magistrate Judge

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