Opinion
No. 4-193 / 03-0629
April 14, 2004.
Appeal from the Iowa District Court for Scott County, Bobbi M. Alpers, Judge.
Plaintiff-appellant Teresa Christiansen appeals the trial court's granting of a directed verdict for defendant-appellee American Family Insurance Group following a trial on her claim for uninsured motorist coverage. AFFIRMED.
Jack Dusthimer of Jack Dusthimer, P.C., Davenport, for appellant.
Ted Wallace, Davenport, for appellee.
Considered by Sackett, C.J., and Vaitheswaran and Eisenhauer, JJ.
Plaintiff-appellant Teresa Christiansen appeals the trial court's granting of a directed verdict for defendant-appellee American Family Insurance Group following a trial on her claim for uninsured motorist coverage. On appeal plaintiff claims the trial court erred in directing a verdict, as there was sufficient evidence to engender a jury question as to whether the motorist upon which her claim was based was uninsured. Plaintiff also claims the trial court erred in refusing to consider the substance of her offer of proof in ruling on defendant's motion for directed verdict. We affirm.
I. BACKGROUND FACTS AND PROCEEDINGS
Plaintiff was involved in a motor vehicle accident on November 25, 1997. While allegedly stopped at a stop light, she was struck from behind by a car owned and driven by Michael Matykiewicz, which itself had been hit from behind by a third vehicle, presumably owned by Mark Rittenhouse. Plaintiff conceded there was no damage to her car. The investigating officer did not remember or note in the accident report whether the drivers of the three cars had liability insurance, nor did she recall any conversation with the plaintiff involving complaints of pain. There was no reference to complaints by plaintiff of pain in the accident report.
Plaintiff testified that immediately following the accident the three people involved moved their vehicles into a parking lot. Plaintiff also testified the driver and passenger in the third truck left the area on foot for a short time and came back.
Plaintiff ultimately began experiencing back problems. She was a legal secretary and filed a petition on her own behalf against both drivers. Matykiewicz, who was insured, was served with original notice of suit and appeared. The claim against him was dismissed on a motion for summary judgment.
Rittenhouse was never served with an original notice. Plaintiff hired a process server in an effort to serve Rittenhouse with papers. Plaintiff had no contact with Rittenhouse or any liability insurance carrier on his behalf after the suit was filed.
Following the dismissal against Matzkiewicz, plaintiff filed the present action against defendant American Family, who insured her automobile. Plaintiff claimed in her petition that as a result of Rittenhouse's negligence she received personal injuries, and because Rittenhouse was uninsured or underinsured, any damages she could have collected from him should be paid by defendant under the uninsured or underinsured motorist provision of her automobile insurance policy with defendant.
The case came on for a jury trial. At the close of plaintiff's case the defendant moved for a directed verdict, contending plaintiff had failed to introduce evidence to support a finding that Rittenhouse was uninsured. The district court sustained defendant's motion.
Plaintiff then requested permission to make an offer of proof, which the district court allowed.
In the offer of proof plaintiff testified that her efforts to contact Rittenhouse and determine whether he was insured included the following: (1) she hired the Lane Waterman law firm's process server to attempt to serve Rittenhouse; and (2) the process server found an address for Rittenhouse in Texas, but was still unsuccessful in serving him with notice of suit.
The case was dismissed and this appeal follows.
II. SCOPE OF REVIEW
Our supreme court has recently summarized appellate review of rulings granting motions for a directed verdict:
Our review of rulings granting motions for directed verdict is for correction of errors at law. In our review, "we view the evidence in the same light as the district court to determine whether the evidence generated a jury question." We therefore view the evidence in the light most favorable to the party opposing the motion. . . . If reasonable minds could differ on an issue of fact, the issue is for the jury.
In ruling on such motions, the district court must decide whether the nonmoving party has presented substantial evidence on each element of the claim. "Evidence is substantial if a jury could reasonably infer a fact from the evidence." A directed verdict is appropriate if the evidence is not substantial.
Gibson v. ITT Hartford Ins. Co., 621 N.W.2d 388, 391 (Iowa 2001) (citations omitted).
It is generally recognized that in order for an insured to recover under uninsured or underinsured motorist coverage, the insured has the burden to prove the uninsured or underinsured status of the other motorist. See Griffith v. Farm and City Ins. Co., 324 N.W.2d 327, 329 (Iowa 1982), cited in Frunzar v. Allied Prop. and Cas. Ins. Co., 548 N.W.2d 880, 886 (Iowa 1996). Because it is often difficult to prove the negative fact that another individual is uninsured, the Iowa courts have adopted a "reasonable efforts" standard. See Frunzar, 548 N.W.2d at 888-89. If a claimant presents evidence that he or she has used "all reasonable efforts" in determining the existence of any applicable liability insurance but remains unsuccessful, an inference may be drawn that the other vehicle was uninsured. See id. at 889. Whether a claimant seeking uninsured motorist coverage has introduced sufficient evidence to raise this inference is a question of law that the trial court may decide on a motion for directed verdict. See id. III. ANALYSIS Evidence of "uninsured" status. Plaintiff claims she satisfied her burden of proof to show Rittenhouse was uninsured by showing she made attempts to serve him, and those attempts were unsuccessful. She also cites to the fact that Rittenhouse did not contact her, nor did his insurance carrier, as further evidence he was uninsured. Plaintiff also points out that Rittenhouse momentarily left the scene of the accident as indicative of his uninsured status. As additional evidence that she satisfied the "all reasonable efforts" standard in attempting to contact Rittenhouse or his insurance carrier, plaintiff points to evidence in her offer of proof that Rittenhouse was reportedly in Texas but that her process server, who was often used by the law firm of Lane Waterman in Davenport, Iowa, and would have been experienced, still was unsuccessful in serving him.
Defendant counters by arguing that plaintiff could easily have made subsequent efforts to locate Rittenhouse in the three years (2001, 2002, and 2003) before trial, which she did not do. Defendant argues plaintiff could and should have made a greater effort to locate Rittenhouse and determine the status of his insurance, if any.
We agree with the trial court that plaintiff did not introduce substantial evidence to support a finding she made "all reasonable efforts" to contact the claimed uninsured motorist, Rittenhouse. Plaintiff's affirmative attempts to locate Rittenhouse consisted of hiring a process server for a short period of time three years before this case was tried. This, coupled with plaintiff's testimony that she was not contacted by an insurance company following an accident where no injuries were reported, is not substantial evidence of reasonable efforts. We affirm on this issue.
Offer of proof. Plaintiff claims it was error for the court to refuse to reopen the record for additional evidence regarding the details of her attempt to serve Rittenhouse through Lane Waterman's process server. A trial court has wide discretion in determining whether to reopen a case for the reception of additional evidence. See Neimann v. Butterfield, 551 N.W.2d 652, 655 (Iowa Ct.App. 1996).
The plaintiff did make an offer of proof as to the evidence that would have been admitted had the record been reopened. We have determined, considering that offer of proof, that there was not substantial evidence to support a finding that plaintiff had made "all reasonable efforts" to determine if Rittenhouse carried liability insurance to compensate her for her alleged injuries. We find no error and affirm the trial court on this issue. See id. AFFIRMED.