JOHN MORENO, Plaintiff-Appellant, versus NATIONWIDE INSURANCE COMPANY, Defendant-Appellee.
No. 95-7027
D. C. Docket No. CV-94-L-2856-S
IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT
(May 23, 1997)
Appeal from the United States District Court for the Northern District of Alabama
Before TJOFLAT and DUBINA, Circuit Judges, and STAGG*, Senior District Judge.
DUBINA, Circuit Judge:
*Honorable Tom Stagg, Senior U.S. District Judge for the Western District of Louisiana, sitting by designation.
I. BACKGROUND
Plaintiff/Appellant John Moreno (“Moreno“) had an automobile accident while driving alone at night on Interstate 65 near Birmingham, Alabama. Moreno alleges that an unknown driver in a white car ran him off the road, causing his car to strike a guard rail, flip over, and land some distance from the highway. There was no physical contact between Moreno‘s automobile and this alleged “phantom” car. Moreno was able to crawl from his car to
Moreno filed a claim for uninsured motorist benefits with Nationwide pursuant to an automobile insurance policy Nationwide had issued to Moreno‘s parents. The policy covers hit-and-run accidents, but provides that:
[i]f there‘s no physical contact with the hit-and-run vehicle, the facts of the accident must be proved. We will accept only competent evidence other than the testimony of any insured whether or not that insured is making a claim under this or any similar coverage.
RE-9, Exhibit A to Second Amended Complaint. In support of his claim, Moreno submitted his statement, his father‘s statement, the police report, and medical information. Moreno did not submit a statement from, nor can he identify, the motorist who aided him. After its investigation, Nationwide denied coverage on the basis that Moreno failed to submit competent evidence from a non-insured individual proving the facts of the accident, as required by the automobile insurance policy.
II. DISCUSSION
Alabama‘s Uninsured Motorist Statute (“the statute“) requires automobile insurance carriers to offer uninsured motorist coverage with their liability policies.
It appears from the plain and unambiguous wording of this section that it is the purpose of the Uninsured Motorist Act, and, thus, the public policy of the state, that Alabama citizens purchasing automobile liability insurance are to be able to obtain, for an additional premium, the same protection against injury or death at the hand of an uninsured motorist as they would have had if the uninsured motorist had obtained the minimum liability coverage required by the Motor Vehicle Safety Responsibility Act.
Champion Ins. Co. v. Denney, 555 So.2d 137, 139 (Ala. 1989).
In order to prove coverage under this section, Moreno has the burden of showing that the “phantom” vehicle was uninsured. Motors Ins. Corp. v. Williams, 576 So.2d 218, 219 (Ala. 1991). In Ogle v. Long, 551 So.2d 914 (Ala. 1989), the Alabama Supreme Court recognized an exception to this general rule that the insured must prove that the tort-feasor driver was uninsured or the owner of the
Although under Williams the claimant has the burden of proving that the “phantom” vehicle was uninsured, Williams did not establish the standard of proof necessary to meet this burden. Moreno‘s automobile insurance policy requires proof by competent evidence other than the testimony of an insured in order to recover under the uninsured motorist provision. Our research reveals no Alabama case which speaks directly to the issue of whether a heightened proof requirement for phantom driver claims, such as the one in Moreno‘s policy, is contrary to Alabama public policy.
In State Farm Fire & Casualty Co. v. Lambert, 285 So.2d 917 (Ala. 1973), the Alabama Supreme Court held that the “physical contact” requirement in a hit-and-run clause in the uninsured motorist provision of an automobile liability insurance policy was contrary to the Alabama Uninsured Motorist Statute. The court noted that a hit-and-run driver was included within the term “uninsured motorist.” The court reasoned that the physical contact requirement was contrary to public policy and in derogation of the statute, which was designed “to protect persons who are injured through the fault of other motorists who in turn are not insured
Moreno argues that the district court erred in granting Nationwide‘s motion for summary judgment because the existence vel non of the phantom driver is a jury question, and the proof of this question should not be limited under the terms of the policy. Moreno cites no definitive Alabama authority for this proposition, but he does point out that “[f]or policy reasons, Alabama courts have viewed any arguments for restricting uninsured motorist coverage with particular disfavor.” Thompson v. American States Ins. Co., 687 F. Supp. 559, 562 (M.D. Ala. 1988), citing Alabama Farm Bureau Mut. Cas. Ins. Co., Inc. v. Mitchell, 373 So.2d 1129, 1133-34 (Ala. Civ. App. 1979).
In support of its position that the district court properly granted its motion for summary judgment, Nationwide cites Alabama Farm Bureau Mut. Cas. Ins. Co. v. Cain, 421 So.2d 1281 (Ala. Civ. App. 1982), in which the Alabama Court of Civil Appeals upheld a requirement in an uninsured motorist policy that, to make a claim for benefits in a hit-and-run case, a policyholder had to report the accident within 24 hours and file a written statement with the insurer within 30 days setting forth the facts in support of the
The automobile insurance policy at issue clearly states that “[i]f there is no physical contact with the hit-and-run vehicle, the facts of the accident must be proved.” The policy further provides that Nationwide “will only accept competent evidence other than the testimony of any insured, whether or not that insured is making a claim under this or any similar coverage.” The policy issued to Moreno‘s parents specifically states that corroboration testimony is required when there is no physical contact between the phantom vehicle and the insured‘s vehicle. As a pure matter of contract interpretation, there is no ambiguity on this point. See 8C John Alan Appleman, Insurance Law and Practice § 5094 (1981) (In states where the inclusion of coverage for hit-and-run drivers is not required in the automobile insurance policy, the matter is one of contract and the provisions should be construed as written.). Even though there is no statutory authority and no Alabama case law which addresses this issue, we hold that the corroboration requirement does not violate public policy.
We note that other states have held similar corroboration requirements to be valid. See e.g. Fisher v. Clarendon National Ins. Co., 437 S.E.2d 344 (Ga. Ct. App. 1993); Farmers Ins. Exchange v. Colton, 504 P.2d 1041 (Or. 1972). These states have included
The corroboration requirement in the automobile insurance policy does not impermissibly limit uninsured motorist coverage. An insured is still entitled to the protection of the statute if he or she can prove that a hit-and-run driver is uninsured. The corroboration requirement only provides the standard of proof necessary to recover under the uninsured motorist provision of the policy. There is no indication from the Alabama cases that this heightened requirement is against public policy. Because Moreno has failed to satisfy corroboration requirements set forth in the insurance policy, we affirm the district court‘s grant of summary judgment in favor of Nationwide.
AFFIRMED.
DUBINA
CIRCUIT JUDGE