United States District Court, N.D. Indiana
TIMOTHY D. CLELAND, Plaintiff,
STATE FARM INSURANCE COMPANY, Defendant.
OPINION AND ORDER
P. SIMON, UNITED STATES DISTRICT JUDGE .
D. Cleland brought this action against his own automobile
insurer, State Farm, for allegedly breaching the underinsured
motorist coverage provision of its policy. Cleland's
vehicle was struck from behind causing injuries to Cleland.
The insurance company of the motorist who struck
Cleland's vehicle only covered $100, 000 of Cleland's
damages resulting from the accident, which wasn't enough
to cover Cleland's losses. As a result, Cleland sought
additional coverage from State Farm, which refused to pay.
State Farm seeks summary judgment on the issue of coverage.
It argues that it is not required to pay Cleland's excess
damages because State Farm's underinsured motorist
coverage provision only applies to damages Cleland is legally
entitled to recover from the other driver, which in this case
is nothing because the other driver was neither negligent nor
in violation of Indiana law. So the central issue is whether
the underinsured motorist was negligent and/or in violation
in Indiana law. Because I think the evidence presented to me
on summary judgment cuts both ways, creating a contested
material issue of fact, I must deny State Farm's motion
and leave the issue for a jury to decide.
suit arises out of a motor vehicle accident in which Cleland
was a passenger in a car insured by State Farm and which was
owned by Indiana Botanical Gardens, Cleland's company.
[DE 28-2 at ¶¶3-4.] At the time of the accident,
Cleland's car was stopped at a drive-thru at a White
Castle restaurant when it was struck in the rear by a 1995
Ford F150 driven by George Wise. [Id. at ¶4.]
Wise's truck was stopped three feet behind Cleland's
vehicle in the drive-thru when it suddenly began moving
forward and hit the back of Cleland's car, bounced
backwards, and then hit Cleland's car a second time. [DE
30 at 26.]
had an insurance policy issued by Farmers Insurance Group
with liability policy limits of $100, 000 per person.
[Id. at ¶8.] Cleland's policy with State
Farm provided underinsured motorist coverage up to $2, 000,
000.00 per person. [DE 28-2 at ¶10.] Cleland alleges the
State Farm has breached this provision. This much is
and Wise have different opinions regarding the cause and
severity of the collision. Wise testified at his deposition
that he had his brakes on when stopped at the drive-thru
behind Cleland, but his brakes failed causing his truck to
suddenly move forward. Wise testified that he tried pumping
the brakes, but that didn't work and he hit the back of
Cleland's car, bounced off of it, and then moved forward
again and hit it a second time. [DE 30 at 114.] After he
struck Cleland's car the second time, Wise put his truck
in park. [Id.] Wise testified that he never put his
foot on the gas. [Id. at 118.] He says he had no
problem with his brakes before he got to the White Castle and
that he was able to drive his truck home, with the brakes
working, after the accident. [Id.] When asked to
describe the two impacts with Cleland's car, Wise
testified that the first impact was “[j]ust a
bump” and that the second impact was “[t]he same
as the first, hardly nothing.” [Id. at 116.]
tells an entirely different story. Cleland rated the impact
of the first collision as an eight on a scale of one to ten,
with one being very insignificant and ten being very hard.
[DE 30 at 26.] He testified that the first impact caused his
vehicle to lunge forward approximately fifteen to twenty
feet. [Id.] He testified that the second impact was
about a seven or an eight on the scale and that it again
moved his vehicle forward fifteen to twenty feet.
[Id. at 27.]
as the state of Wise's truck at the time of the accident,
Wise testified that he took his truck in for service
“[w]henever it needed something” and had his
brakes checked “[o]nly when they were worked on.”
[DE 30 at 120.] Wise's truck was a 1995 F150 that he
bought used a few years before the accident. [Id. at
112-113.] He testified that he had the brakes worked on at
some point before the accident for regular wear and tear, but
that was probably a couple of years before the accident.
[Id. at 113, 120.] When asked what kinds of problems
he had with the brakes that previously required service, Wise
said “[p]robably just discs repaired or replaced, the
pads” and couldn't identify any other work that
would have been done on his brakes. [Id.] After the
accident, Wise had his truck towed from his home to a repair
shop in Hammond, Indiana where Wise's master cylinder was
repaired. [Id. at 115-116.] Wise testified that he
had never had his master cylinder fail before. [Id.
tells me that as a result of the accident, he has incurred
significant medical expenses that exceed the coverage of
Wise's policy. [DE 5 at ¶6.] Cleland sought payment
for the excess medical expenses from State Farm under the
underinsured motorist coverage provision of his policy but
alleges that State Farm has failed to pay the amount he
requested in breach of that provision. [DE 12 at ¶6.]
Cleland sued State Farm in state court for breach of contract
seeking damages to compensate him for his pain, suffering,
emotional distress, impairments, temporary and permanent
disability, medical expenses, and other damages that he is
entitled to recover by reason of the accident including the
aggravation of his prior existing medical conditions and
punitive damages. [DE 5.] State Farm timely removed the
action to this Court. [DE 1.] Though discovery still is
ongoing, State Farm moved for summary judgment on the issue
of coverage under its underinsured motorist coverage
provision. [DE 27.]
judgment is proper “if the movant shows that there is
no genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.” Fed.R.Civ.P.
56(a). A genuine dispute about a material fact exists only
“if the evidence is such that a reasonable jury could
return a verdict for the non-moving party.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986). A nonmoving party like Cleland is not entitled to the
benefit of “inferences that are supported by only
speculation or conjecture.” Argyropoulos v. City of
Alton, 539 F.3d 724, 732 (7th Cir. 2008) (citations and
issue is whether Wise was negligent or in violation of
Indiana law, which resulted in his car colliding with
Cleland's car. In other words, the underinsured policy
only kicks in if Wise is liable to Cleland. It is unlawful to
operate a motor vehicle in Indiana with an inadequate braking
system. I.C. § 9-19-3-1. One who violates this safety
provision faces a rebuttable presumption of negligence.
Davison v. Williams, 242 N.E.2d 101, 104 (Ind.
1968). Based on the evidence before me, there are too many
questions of fact to decide the issue on summary judgment.
The briefing and evidence relied upon simply raise too many
questions regarding the cause of the accident from which
Cleland's alleged injuries resulted.
it is disputed whether Wise's brakes failed immediately
before the accident. Wise claims that they did, but he also
testified that he didn't experience any issues before the
accident or immediately after when he safely drove home in
his truck without incident. Second, it is disputed whether
the alleged failure of Wise's brakes was unforeseeable.
Wise's testimony regarding the maintenance of his truck
is opaque. His truck was approximately 17 years old at the
time of the accident. He testified that he bought it used a
few years before the accident and that he only had the brakes
check when they were being worked on for something else. But
he was unable to identify definitively the types of service
and repairs he had done to his truck or when the service was
completed except that he had his brakes worked on for regular
wear and tear a couple of years before the accident. All of
this raises a question of fact about the state of Wise's
truck at the time of the accident and whether Wise was
keeping the truck in good working order in compliance with
Indiana law. Third, Cleland and Wise's account of the
severity of the accident differ greatly. Cleland testified
that his car was jolted forward at least thirty feet by the
two impacts with Wise's truck, while Wise testified that
it was merely a bump, which further raises questions of fact
regarding what exactly could have and did cause the accident.
Farm argues that Cleland is attempting to manufacture a
question of fact through self-serving testimony, DE 36 at 8,
which is not sufficient to defeat a motion for summary
judgment. State Farm is flat wrong in this regard. Many years
ago the Seventh Circuit put to rest the old saw that
self-serving testimony cannot be used to beat summary
judgment. So long as testimony is based on personal
knowledge, the fact that it is
labeled“self-serving” is neither here nor there.
Payne v. Pauley, 337 F.3d 767, 772 (7th Cir. 2003).
“‘Self-serving' deposition testimony
may satisfy a party's evidentiary burden on
summary judgment.” Whitlock v. Brown, 596 F.3d
406, 411 (7th Cir. 2010) (emphasis in original).
Cleland's testimony regarding what he experienced and
observed at the time of the accident is precisely the type of
“self serving” testimony that may be considered
in these circumstances. Id. In addition, as I
already noted, the factual disputes that I have identified