Moreno v. Nationwide Insurance Co.

United States Court of Appeals,

Eleventh Circuit.

No. 95-7027.

John MORENO, Plaintiff-Appellant,

v.

NATIONWIDE INSURANCE COMPANY, Defendant-Appellee.

Feb. 18, 1997.

Appeal from the United States District Court for the Northern
District of Alabama. (No. CV-94-L-2856-S), Seybourn H. Lynne,
Judge.

Before TJOFLAT and DUBINA, Circuit Judges, and STAGG*, Senior
District Judge.

DUBINA, Circuit Judge:

CERTIFICATION FROM THE UNITED STATES COURT OF APPEALS FOR THE

ELEVENTH CIRCUIT TO THE SUPREME COURT OF ALABAMA PURSUANT TO RULE

18 OF THE ALABAMA RULES OF APPELLATE PROCEDURE.

TO THE SUPREME COURT OF ALABAMA AND THE HONORABLE JUSTICES

THEREOF:

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). The Alabama

courts have not answered this question; therefore, we certify it

to the Alabama Supreme Court.

I. BACKGROUND

On October 11, 1992, Plaintiff/Appellant, John Moreno

*
Honorable Tom Stagg, Senior U.S. District Judge for the
Western District of Louisiana, sitting by designation.
("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 "phantom" car. Moreno was able to crawl from his car and

get to 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 that this car ran Moreno off the road. The

investigating police officer described the event as a single car

accident with no witnesses.

On October 14, 1992, Moreno filed a claim for uninsured

motorist benefits with Nationwide Insurance Company ("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 is no physical contact with the

hit-and-run vehicle, the facts of the accident must be proved. We

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." RE-9, Exhibit A-2 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 the motorist

who aided him because his identity is unknown. 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.

Moreno filed his complaint in the Circuit Court of Jefferson

County, Alabama, on October 11, 1994. Nationwide removed the case

to the United States District Court for the Northern District of

Alabama, on the basis of diversity. The district court granted

Nationwide's motion for summary judgment on November 8, 1995.

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). In State

Farm Fire & Casualty Co. v. Lambert, 291 Ala. 645, 285 So.2d 917

(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

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,1
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.Alabama 1988), citing Alabama

Farm Bureau Co. 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

1
Moreno does cite a passage from a Florida case, quoted with
approval in Lambert:

The argument that the policy requirement of
physical contact is reasonable is fallacious. The only
reason for such a requirement is to prove that the
accident actually did occur as a claimant may say it
did. This is a question of fact to be determined by
the jury, or the judge if demand for jury trial is not
made. If the injured party can sustain the burden of
proof that an accident did occur, he should be entitled
to recover, regardless of the actuality of physical
contact.

285 So.2d at 920 quoting Brown v. Progressive Mut. Ins. Co.,
249 So.2d 429 (Fla.1971). This language is not inconsistent
with a corroboration requirement, however. For instance, if
Moreno had presented corroborating evidence and Nationwide
still withheld benefits, then the issue would go to a jury.
Farm Bureau Mut. Casualty Ins. Co. v. Cain, 421 So.2d 1281

(Ala.Civ.App.1982), in which the Alabama Court of Civil Appeals

upheld a provision in an uninsured motorist policy that required

policyholders claiming benefits in a hit-and-run accident to report

the accident within 24 hours and file a written statement with the

insurer within 30 days setting forth the facts supporting the

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. This, however, does not answer

whether a heightened proof requirement for phantom driver cases is

against Alabama public policy.2

"When substantial doubt exists about the answer to a material

state law question upon which the case turns, a federal court

should certify that question to the state supreme court in order to

avoid making unnecessary state law guesses and to offer the state

court the opportunity to explicate state law." Forgione v. Dennis

Pirtle Agency, Inc., 93 F.3d 758, 761 (11th Cir.1996). The only

method by which federal courts can receive definitive answers to

unsettled state law questions is through certification. Id.

2
Nationwide also relies upon Khirieh v. State Farm Mut.
Auto. Ins. Co., 594 So.2d 1220 (Ala.1992), Alfa Mut. Ins. Co. v.
Beard, 597 So.2d 664 (Ala.1992), and Jones v. Nationwide Mut.
Ins. Co., 598 So.2d 837 (Ala.1992), for the proposition that it
is not contrary to public policy to require corroboration in
phantom driver cases. Nationwide contends that these cases,
although not directly on point with the present case, provide
sufficient guidance for us to hold that corroboration
requirements are not in derogation of the Alabama Uninsured
Motorist Statute. We defer to the Alabama Supreme Court on this
interpretation of state law.
(citations omitted). "Only a state supreme court can provide what

we can be assured are "correct' answers to state law questions,

because a state's highest court is the one true and final arbiter

of state law." Id. (citations omitted).

III. QUESTION TO BE CERTIFIED

We respectfully certify the following question of law to the

Alabama Supreme Court:

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).

The entire record in this case, together with copies of the

briefs of the parties, is transmitted herewith.

QUESTION CERTIFIED.