[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
No. 95-7027
D. C. Docket No. CV-94-L-2856-S
JOHN MORENO,
Plaintiff-Appellant,
versus
NATIONWIDE INSURANCE COMPANY,
Defendant-Appellee.
Appeal from the United States District Court
for the Northern District of Alabama
(May 23, 1997)
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.
This appeal presents a single issue for our consideration:
whether a provision in an automobile insurance policy requiring
proof of a hit-and-run accident from competent evidence other than
the testimony of any insured is in derogation of Alabama’s
Uninsured Motorist Statute, Ala. Code § 32-7-23 (1975). To anyone
familiar with the concept of federalism, this may appear to be an
unusual issue for our court. We originally certified this question
to the Alabama Supreme Court for its pronouncement on what is
clearly a question of substantive state law; however, the court
declined our invitation. Moreno v. Nationwide Insurance Company,
105 F.3d 1358 (11th Cir. 1997). Therefore, we are placed in the
unusual position of having to decide a first impression question of
Alabama state law. We hold that a corroboration requirement in
phantom driver cases is not contrary to public policy.
Accordingly, we affirm the district court’s grant of summary
judgment in favor of appellee/defendant Nationwide Insurance
Company (“Nationwide”).
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
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the side of the road for help. A passing vehicle stopped and the
driver used his cellular phone to call for medical assistance and
to call Moreno’s father. Moreno’s father later stated that the
passing motorist who rendered assistance to his son told him that
he had seen a light or white vehicle weaving on the interstate and
this car ran Moreno off the road. The investigating police officer
described the event as a single car accident with no witnesses.
After Moreno was rushed to the hospital, hospital staff
administered a blood alcohol test which measured Moreno’s alcohol
level at 0.1.
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.
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Moreno filed his complaint in the Circuit Court of Jefferson
County, Alabama. Nationwide removed the case to the United States
District Court for the Northern District of Alabama. Nationwide
moved for dismissal of certain counts of the original complaint.
In response, Moreno filed an amended complaint. Subsequently,
Moreno filed a second amended complaint. Nationwide filed an
answer to the complaint and a motion for summary judgment. The
district court granted Nationwide’s motion for summary judgment and
Moreno then perfected this appeal.
II. DISCUSSION
Alabama’s Uninsured Motorist Statute (“the statute”) requires
automobile insurance carriers to offer uninsured motorist coverage
with their liability policies. Ala. Code § 32-7-23(a).
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
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vehicle was uninsured. The court stated that if the claimant can
show that he used “reasonable diligence to ascertain the uninsured
status of the tort-feasor and such information was unobtainable,”
the burden shifts to the carrier of the uninsured motorist coverage
to prove that the tort-feasor was, in fact, insured. Id. at 915-
16. Moreno has neither alleged the application of this exception
nor met the requirements for this exception to apply.
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
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and cannot make whole the injured party.” Id. at 919. Lambert
states that the statute is designed to “protect injured persons who
can prove that the accident did in fact occur.” Id. (emphasis
added.) Lambert, however, did not address the quantum of proof
necessary and thus did not answer the question before us -- whether
the corroboration requirement in “phantom driver” cases is
consonant with public policy and the statute.
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
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claim. The court noted that “[i]n the absence of statutory
provisions to the contrary, insurance companies have the same right
as individuals to limit their liability or impose conditions upon
coverage so long as such conditions are not inconsistent with
public policy.” Id. at 1283.
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
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such corroboration requirements in their uninsured motorist
statutes by stating that if there is no physical contact between
the motor vehicle owned or operated by the unknown driver and the
person or property of the insured, the description by the claimant
of how the accident occurred must be corroborated by an eyewitness
to the occurrence other than the claimant. See Ga. Code Ann. § 33-
7-11(b)(2) (1992).
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.
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