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Cottrell v. American Family Mutual Insurance Co.

United States District Court, E.D. Missouri, Northern Division

November 21, 2017

ROGER D. COTTRELL and TERESA M. COTTRELL, Plaintiffs,
v.
AMERICAN FAMILY MUTUAL INSURANCE COMPANY, Defendant.

          OPINION, MEMORANDUM AND ORDER

          HENRY EDWARD AUTREY UNITED STATES DISTRICT JUDGE.

         This matter is before the Court on Defendant's Motion for Summary Judgment [Doc. 21]. Plaintiffs oppose the Motion [Doc. 29].

         Facts and Background

         This 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.

         Before 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 limit.

         Then 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.

         Roger 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.

         On October 10, 2014, Plaintiffs notified American Family of the wreck. Attorney Templeton sent American Family a demand letter on July 30, 2015.

         On 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.”

         On 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 Family.

         On 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 time.

         On July 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.

         Bono 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 accident.

         On 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 ...


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