[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.
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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.