United States District Court, E.D. Missouri, Northern Division
ROGER D. COTTRELL and TERESA M. COTTRELL, Plaintiffs,
AMERICAN FAMILY MUTUAL INSURANCE COMPANY, Defendant.
OPINION, MEMORANDUM AND ORDER
EDWARD AUTREY UNITED STATES DISTRICT JUDGE.
matter is before the Court on Defendant's Motion for
Summary Judgment [Doc. 21]. Plaintiffs oppose the Motion
action arises from an automobile accident. Plaintiffs'
claim arises out of a motor vehicle accident that occurred on
October 9, 2014. Plaintiff Roger D. Cottrell was traveling
north on U.S. Highway 61, a four-lane divided highway at its
intersection with County Route OO. Mason Baumgarte was in a
pickup truck on an access road on the east side of Highway 61
at a stop sign. Across from Baumgarte was a brown car at a
yield sign in the median on Highway 61. The parties have not
been able to identify the driver of the brown car present at
the intersection prior to the accident.
Baumgarte pulled out onto the highway in his attempt to cross
it, he saw Roger Cottrell's vehicle on Highway 61 headed
northbound toward him in the right-hand lane. Baumgarte
estimated Cottrell's vehicle was approximately ten car
lengths away from the intersection when he first saw it and
he estimated that it might be traveling approximately five or
ten miles an hour faster than the 65 miles-per-hour speed
the driver of the brown vehicle (the unidentified, uninsured
motorist at issue) waved Baumgarte across the intersection.
Baumgarte again checked oncoming traffic and started to
proceed across the highway. Baumgarte testified that the
brown vehicle pulled out onto the highway. The driver of the
brown car pulled out into the northbound passing, left-hand
lane and proceeded north on Highway 61. Independent witness
Sylvia Elliott testified that the brown car pulled out in
front of the Baumgarte truck and the brown car was blocking
both of the northbound lanes before leaving the scene at a
high rate of speed.
Cottrell's vehicle then collided with Mason
Baumgarte's vehicle. According to Roger Cottrell's
deposition testimony, he was close enough to Mason Baumgarte
when Baumgarte pulled out in front of him that he made eye
contact with Baumgarte before Baumgarte pulled out onto
Highway 61. Mr. Cottrell was “very” surprised
when Baumgarte pulled out. Mr. Cottrell did not see any other
vehicle pull into the roadway at the intersection of Highway
61 and Route OO. But, both parties admitted that the brown
car did pull out onto the roadway blocking the path of the
Mason Baumgarte black truck.
October 10, 2014, Plaintiffs notified American Family of the
wreck. Attorney Templeton sent American Family a demand
letter on July 30, 2015.
October 10, 2014, American Family Casualty Claims Adjuster
Jeannine Bono ordered a copy of the police report, which she
obtained later that month. The police report contains a
statement from Roger Cottrell: “I was going north on
U.S. 61. He pulled right in front of me. I couldn't hit
the brakes or nothing.” The police report contains a
statement from Mason Baumgarte: “I was stopped at U.S.
61. There was a brown car on the other side and trying to
turn left onto U.S. 61. He waved me over. I started coming
over and the guy pulled in front of me and headed north on
61. I had to stop in the roadway and this car hit my
side.” The police report contains a statement from
witness Sylvia Louise Rousan-Elliott: “There was a
brown car in the crossover. The truck was at the side street
and started to come across. The brown car made a quick left
in front of [the] truck. The truck stopped and the Ford car
ran into it.”
October 15, 2014, Bono obtained a recorded statement from
Roger Cottrell. During his recorded statement Mr. Cottrell
stated he was traveling in the “right slow lane”
north on Highway 61 at 65 miles per hour. Mr. Cottrell
described the accident as “I came up on the
intersection, I got about maybe fifteen, twenty feet from the
intersection. I can clearly see this young man looking at me.
He pulls directly out into my path, I T-boned him
directly.” When asked if he did anything to avoid the
accident, “slam on your brakes, swerve, do anything
like that” Mr. Cottrell responded “There was no
time.” Mr. Cottrell stated “there was no other
cars at that intersection that I could tell.” Mr.
Cottrell added that Mr. Baumgarte pulled out in front of him
“like he was trying to beat a train or something, he
was looking right at me.” Mr. Cottrell also stated
“I just cannot believe that that state patrolman did
not ticket this boy for failure to yield.” On October
28, 2014, Ms. Bono documented that she left voicemails for
Mason Baumgarte and witness Sylvia Rousan-Elliott. Ms.
Rousan-Elliott stated she was never contacted by American
October 29, 2014, Allied Insurance (Mason Baumgarte's
insurance company) left a voicemail for Ms. Bono indicating
Allied assessed 100% liability for the accident against Mason
Baumgarte. American Family closed its file at that point in
30, 2015, Scott Templeton, counsel for Roger and Teresa
Cottrell, sent a non-time limit demand letter for uninsured
motorist coverage for Roger Cottrell's injuries sustained
in the accident, which American Family received on August 3,
2015. Mr. Templeton's correspondence reiterated Mr.
Baumgarte's statement in the police report and indicated
Mr. Templeton had contacted Ms. Rousan-Elliott, who
“corroborated what Mr. Baumgarte said with regard to
the brown vehicle's actions in connection with this
accident.” American Family re-opened its claim,
acknowledged the demand, and referred the injury portion of
the assessment to Injury Claims Adjuster Laura Burris.
and Rachel Manning, her supervisor, assessed the claim and
denied liability on September 3, 2015, due to having
determined that Baumgarte was at fault in causing the
February 16, 2016, American Family received a ten-day time
limit demand reasserting the uninsured motorist claim for
Roger Cottrell's injuries. Bono and Manning again
assessed the claim and denied liability on February ...