Pittam v. Ohio Security Insurance Company ( 2021 )

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Bradley Darrin Pittam, No. CV-19-04898-PHX-DLR 10 Plaintiff, ORDER 11 v. 12 Ohio Security Insurance Company, 13 Defendant. 14 15 16 Before the Court are the parties’ cross motions for summary judgment, which are 17 fully briefed. (Docs. 51, 52, 57, 58, 61, 62.) Defendant’s motion is denied and Plaintiff’s 18 motion is granted as described herein. 19 I. Background 20 On October 3, 2017, Plaintiff was in a car crash while driving westbound along 21 Phoenix State Route 202 in a truck insured by Defendant under a business auto policy. 22 (Doc. 51-1 at 1-171.) Plaintiff claims that the crash was caused by a phantom vehicle, 23 which cut him off—forcing him to perform an evasive maneuver and rear-end a semi- 24 trailer—and fled the scene. Plaintiff filed a claim for benefits under Defendant’s uninsured 25 motorist (“UM”) policy. Defendant denied Plaintiff’s claim on December 27, 2017. (Doc. 26 1-3 at 3.) On July 1, 2019, Plaintiff filed suit against Defendant in Maricopa County 27 Superior Court. (Doc. 1-3.) Defendant removed the action to this Court on August 6, 2019. 28 (Doc. 1.) Plaintiff’s operative complaint seeks a declaration that he has sufficiently 1 corroborated “that the accident was caused by a phantom vehicle to be extended uninsured 2 motorist’s benefits under the policy” and an order that Plaintiff’s entitlement to damages 3 be arbitrated. (Doc. 18.) The parties have filed cross motions for summary judgment, 4 which are now ripe. 5 II. Legal Standard 6 When parties submit cross-motions for summary judgment, the Court must consider 7 each motion on its own merits. Fair Hous. Council of Riverside Cty., Inc. v. Riverside 8 Two, 249 F. 3d 1132, 1136 (9th Cir. 2001). Summary judgment is appropriate when there 9 is no genuine dispute as to any material fact and, viewing those facts in a light most 10 favorable to the nonmoving party, the movant is entitled to judgment as a matter of law. 11 Fed. R. Civ. P. 56(a). A fact is material if it might affect the outcome of the case, and a 12 dispute is genuine if a reasonable jury could find for the nonmoving party based on the 13 competing evidence. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Villiarimo 14 v. Aloha Island Air, Inc., 281 F.3d 1054, 1061 (9th Cir. 2002). Summary judgment may 15 also be entered “against a party who fails to make a showing sufficient to establish the 16 existence of an element essential to that party’s case, and on which that party will bear the 17 burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). 18 The party seeking summary judgment “bears the initial responsibility of informing 19 the district court of the basis for its motion, and identifying those portions of [the record] 20 which it believes demonstrate the absence of a genuine issue of material fact.” Id. at 323. 21 The burden then shifts to the non-movant to establish the existence of a genuine and 22 material factual dispute. Id. at 324. The non-movant “must do more than simply show that 23 there is some metaphysical doubt as to the material facts[,]” and instead “come forward 24 with specific facts showing that there is a genuine issue for trial.” Matsushita Elec. Indus. 25 Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986) (internal quotation and citation 26 omitted). Even where there are some factual issues raised, summary judgment is 27 appropriate if the totality of the undisputed facts is such that reasonable minds could not 28 differ on the resolution of the factual question. Chesney v. United States, 632 F. Supp. 867, 1 869 (D. Ariz. 1985). 2 III. Discussion 3 To qualify for UM coverage involving a phantom vehicle in Arizona, a plaintiff is 4 required to provide certain corroboration. Particularly, 5 If an insured makes a bodily injury . . . claim under uninsured . . . motorist coverage based on an accident that involved an 6 unidentified motor vehicle and no physical contact with the motor vehicle occurred, the insured shall provide corroboration 7 that the unidentified motor vehicle caused the accident. For the purposes of this subsection, “corroboration” means any 8 additional and confirming testimony, fact or evidence that strengthens and adds weight or credibility to the insured's 9 representation of the accident. 10 A.R.S. § 20-259.01(M) (emphasis added). In accordance with Arizona law,1 Defendant’s 11 relevant UM policy covers incidents in which an uninsured vehicle “[c]ause[s] bodily 12 injury to an insured without hitting an insured, a covered auto or a vehicle an insured is 13 “occupying, provided the facts of the accident can be corroborated by any additional and 14 confirming testimony, fact, or evidence that strengthens and adds weight or credibility to 15 the insured’s representation of the accident.” (Doc. 51-1 at 47 (internal quotations 16 omitted).) Notably, to meet this corroboration burden, a claimant is not required to 17 “provide independent corroboration of the actual existence of a ‘miss and run’ vehicle. The 18 statute only requires corroboration of the claimant’s depiction of an accident that was 19 caused by such a vehicle.” Scruggs v. State Farm Mut. Auto. Ins. Co., 62 P.3d 989, 994 20 (Ariz. Ct. App. 2003) 21 Plaintiff argues that the opinion of his accident-reconstruction expert, Joseph 22 Catone, meets the corroboration requirement by supporting his account that a phantom 23 vehicle cut him off, causing him to take an abrupt evasive maneuver and to crash into the 24 1 Plaintiff confusingly argues that Defendant’s policy, requiring corroboration of the 25 “facts of the accident . . . by any additional and confirming testimony, fact or evidence that strengthens and adds weight or credibility to the insured’s representation of the accident” 26 is unenforceable because it is inconsistent with Arizona law’s definition of corroboration as “any additional and confirming testimony, fact or evidence that strengthens and adds 27 weight or credibility to the insured’s representation of the accident.” The Court is unable to understand—and Plaintiff does not explain—how, practically, Plaintiff could 28 corroborate his representation of the accident without corroborating the facts of the accident. The distinction that Plaintiff attempts to draw is therefore rejected. 1 semi-trailer. The Court agrees. Here, Mr. Catone opined, 2 Mr. Pittam had been driving in the No.1 lane of traffic on the westbound 202. An unknown vehicle . . . merged into his lane. 3 [Plaintiff] took an evasive lane change maneuver to avoid that collision and ultimately collided with the rear of the 4 commercial truck. 5 (Doc. 51-1 at 362.) Mr. Catone explained that his conclusion that the phantom vehicle cut 6 Plaintiff off and caused Plaintiff to take abrupt evasive action, leading to the collision with 7 the semi-trailer, was based not only on Pittam’s recollection, but also on “what we see 8 [from the investigation.]” (Id. at 407.) Mr. Catone confirmed that the roadway evidence, 9 particularly tire marks, make “[Plaintiff’s] version of events more likely than any of the 10 other possible scenarios.” (Id. at 410-11.) Particularly, when asked whether multiple other 11 scenarios—other than being cut off by a phantom vehicle—could have caused Plaintiff to 12 take an abrupt evasive turn to the right, an action supported by the evidence, Mr. Catone 13 responded, “I cannot fathom at this point another scenario that would cause this to happen.” 14 (Id. at 408.) 15 Contrary to Defendant’s contentions, Mr. Cantone’s opinion did not “merely repeat 16 [Plaintiff’s] version of events,” but rather confirmed Plaintiff’s “representation of the 17 accident” following expert review of the vehicular and roadway damage. Mr. Catone’s 18 report therefore adds weight or credibility to Plaintiff’s description of the accident and, “to 19 some degree, strengthen[s] [his] version of the accident.” Scruggs, 62 P.3d at 994 (finding 20 a report’s confirmation of the plaintiff’s “allegation that he veered into the back of the 21 tanker truck at an angle coming from the left” sufficient to meet the corroboration 22 requirement). Therefore, Plaintiff has sufficiently corroborated his claim such and the 23 Court will order arbitration of his entitlement to damages under Defendant’s UM policy. 24 IT IS ORDERED that Defendant’s motion (Doc. 51) is DENIED and Plaintiff’s 25 motion (Doc. 52) is GRANTED. The Clerk of Court shall enter judgment in favor of 26 Plaintiff and terminate this action. 27 … 28 1 IT IS FURTHER ORDERED that Plaintiff's entitlement to damages shall be 2|| arbitrated under the terms of Defendant’s UM policy. 3 Dated this 15th day of July, 2021. 4 5 : Los Ue 8 Uaited States District Judge 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -5-