United States District Court, N. Indiana, South Bend Division. Editors Note Applicable Law: 28 U. Patricia A. Hans H. JON E. Allen Stuckey ran over a dead deer while driving on the Indiana Toll Road. His car jerked as he hit the deer, injuring his neck and knee. He then sought uninsured motorist coverage for those injuries —the uninsured motorist being an unknown vehicle that Dr. Stuckey surmises had previously struck and killed the deer.

Stuckey filed this action. It contends that the unknown vehicle did not hit Dr. For the following reasons, the Court grants the motion. On October 9,Dr. He was driving in the right lane behind a semi, and pulled into the left lane to pass. Shortly Battery Distribution Company pulling into the left lane, he saw a deer laying across the lane. The deer appeared dead, and Dr. Stuckey believed that it may have been hit by a truck.

Stuckey was unable to pull back into the right lane since he was already beside the truck, so he hit the brake for a moment before colliding with the deer. His car pitched up and traveled over the deer. Stuckey testified that the car threw him in different directions, causing his left knee to hit the steering column and torqueing his neck. Stuckey continued driving and did not stop at the site of the incident, but he called four or five minutes later to report the deer in traffic.

At the time of the accident, Dr. Stuckey had an auto insurance policy with 21st Century Centennial Insurance Company. That policy provided certain coverage for bodily injuries sustained in an accident with an uninsured motorist. In particular, the policy stated that 21st Century "will pay compensatory damages that an insured is legally entitled to recover from the owner or operator of an uninsured motor vehicle because of bodily injury: a.

Sustained by an insured; and b. Caused by an auto accident with an uninsured motor vehicle. The policy further defines "uninsured motor vehicle," in pertinent part, as a vehicle that "is a hit-and-run vehicle whose operator or owner cannot be identified and which hits After the incident, Dr. Stuckey submitted a claim to 21st Century. However, 21st Century denied coverage for Dr. Stuckey's bodily injuries.

Stuckey and his wife thus filed this suit. In the first count, they seek coverage for Dr. Stuckey's injuries. In the second count, they assert that 21st Century denied their claim in bad faith. Discovery closed, and 21st Century has now moved for summary judgment. Summary judgment is proper when 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. A "material" fact is one identified by the substantive law as affecting the outcome of the suit.

Anderson v. Liberty Lobby, Inc. A "genuine issue" exists with respect to any material fact when "the evidence is such that a reasonable jury could return a verdict for the nonmoving party. Where a factual record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no genuine issue for trial, and summary judgment should be granted. Matsushita Elec. Zenith Radio Corp. Cities Servs. Jackson v. Kotter, F. Preferred Tech. It argues that it owes no uninsured motorist coverage for Dr.

Stuckey's injuries under these circumstances, and that it cannot be liable on the bad faith 21st Century Centennial Insurance Company Claims because its denial of coverage was correct, or at the very least was reasonable.

Stuckey's claims arise under Indiana law, so the Court must resolve the claims as would the Indiana Supreme Court.

State Farm Mut. Pate, F. In the absence of controlling precedent by the Indiana Supreme Court, the Court gives great weight to decisions of the state's appellate courts. The Court begins with the question Www Thehersheycompany Com Careers whether the injuries were covered under the policy, which is dispositive for both counts. First, it argues that there is no coverage because there is no evidence that a hit-and-run vehicle "hit" Dr.

Stuckey's Qcy Company Profile. Second, it argues that even if the incident would otherwise be covered, Dr.

The policy provides uninsured motorist coverage if a hit-and-run vehicle "hits" an insured vehicle. Stuckey's car, but the parties argue over how expansively the term "hit" can be construed.

Will v. Meridian Ins. Group, Inc. Hartford Underwriters Ins. Lamb, N. Thus, Indiana courts 21st Century Centennial Insurance Company Claims stated that coverage could exist if "an unidentified vehicle strikes another vehicle propelling it into the insured's automobile and where the unidentified automobile strikes a telephone pole causing it to strike the insured's automobile.

Coverage could likewise exist if a hit-and-run vehicle "caused a rock to crash through the window of the insured's vehicle.

Ackles, N. Neither party has cited, nor has the Court located, an Indiana case that addresses the sequence here, where a foreign body enters the roadway, is struck by one vehicle, comes to rest, and is then struck again by the insured's vehicle.

As 21st Century argues, the deer was not propelled into Dr. Stuckey's car, as the deer had come to rest for an unknown amount of time before he struck it. And as the Seventh Circuit discussed in Milam, it is difficult to describe an insured's car as being hit or struck by another car if the insured's car strikes an object that has already come to rest:.

Milam v. If Milam was the last word in this issue, the outcome would be clear. In Will, a load of debris had apparently fallen from a truck and came to rest in the road, where Vsv Company plaintiff ran into it and suffered injuries. It is not clear that Indiana would extend that reasoning beyond the context of vehicular debris though. Here, however, it would be quite unnatural to say that the unknown vehicle "hit" Dr.

Stuckey's car just because they both struck the same deer at different times. The Court need not definitively resolve that question, though, as it finds that the corroborating witness provision would apply regardless. Stuckey concedes that he does not have Lei Jeans Company such witness. Indiana courts have in fact previously interpreted those two terms similarly.

See Will, N. That cannot be the case here, though, as interpreting those two terms the same would read the corroborating witness provision out of the policy. Meridian Mut. Cox, N. Stoler, 77 N. United Farm Family Mut. Rice v. Nor does the fact that Indiana courts have previously interpreted those terms similarly when used on their own mean Yellow Cab Company Number the term must have that same meaning here.

As the Indiana court of appeals discussed in Masten, "[b]ecause we construe insurance policies as a whole in each case, prior cases that focus upon similar or identical clauses or exclusions are not necessarily determinative of later cases because the insurance policies as a whole may differ.

AMCO Ins. Thus, "the same clause may be construed differently in different cases because the identical clauses are only part of each insurance policy under consideration. See Lamb, N.

In Rozhon v. Doe, Wis. Again, that is a narrower interpretation than Indiana courts give to the term when used on its own, but that shows that this is a reasonable interpretation to give the term in this context so as to avoid rendering the corroborating witness provision meaningless.

Stuckey's car, and because Dr.

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