Nau v. Safeco Insurance Company of Illinois

2017 UT App 44

THE UTAH COURT OF APPEALS

NANI NAU,
Appellant,
v.
SAFECO INSURANCE COMPANY OF ILLINOIS,
Appellee.

Opinion
No. 20150427-CA
Filed March 9, 2017

Fourth District Court, Provo Department
The Honorable Derek P. Pullan
No. 140400338

Nathan E. Burdsal and Hutch U. Fale, Attorneys
for Appellant
Nathan R. Skeen, Attorney for Appellee

JUDGE STEPHEN L. ROTH authored this Opinion, in which JUDGES
GREGORY K. ORME and J. FREDERIC VOROS JR. concurred.

ROTH, Judge:

¶1 Nani Nau appeals the district court’s grant of summary
judgment in favor of Safeco Insurance Company of Illinois
(Safeco) on his uninsured motorist claim. We affirm.

¶2 In February 2014, Mr. Nau was driving in the far left lane
of I-15 near Draper, Utah when his tire ruptured. He lost control
of the vehicle and crashed into the median, suffering serious
injury.

¶3 According to Mr. Nau, the tire ruptured because he ran
over debris in the road that looked like a piece of concrete,
rubber, or carpet approximately two to three feet wide. Mr.
Nau’s wife was also in the vehicle at the time of the crash, but
Nau v. Safeco Insurance Company of Illinois

she was not looking at the road and therefore did not see the
debris. Nevertheless, she recalled hearing her husband exclaim,
“oh,” and feeling the car run over something just before he lost
control of the vehicle.

¶4 Mr. Nau filed a claim with his insurance agency, Safeco,
pursuant to the uninsured motorist provisions of his insurance
policy under the theory that an unidentified motorist was the
cause of the debris on the highway and thus the cause of the
accident. Safeco denied the claim, and Mr. Nau filed a complaint
in district court.

¶5 Safeco moved for summary judgment on the ground that
Mr. Nau could not meet his burden of proof under Utah law. Mr.
Nau responded that his and his wife’s statements together raised
a genuine issue of fact as to whether there was debris on the
road and that the doctrine of res ipsa loquitur should be applied
to establish the inference that the debris was left by an uninsured
motor vehicle.

¶6 The district court granted Safeco’s motion for summary
judgment, concluding that the evidence was speculative as to
whether there was debris on the road and as to whether it was
left by an uninsured motor vehicle. Mr. Nau appeals.

¶7 “We review a district court’s grant of summary judgment
for correctness, giving no deference to its conclusions of law.
Summary judgment is appropriate when there is no genuine
issue as to any material fact and the moving party is entitled to a
judgment as a matter of law.” Flowell Elec. Ass’n, Inc. v. Rhodes
Pump, LLC, 2015 UT 87, ¶ 8, 361 P.3d 91 (citations and internal
quotation marks omitted).

¶8 For purposes of our analysis, we assume that Mr. Nau’s
and his wife’s statements raised a genuine issue of material fact

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Nau v. Safeco Insurance Company of Illinois

as to the existence of the debris.1 However, because we conclude
that Mr. Nau’s evidence could not establish that the debris was
left by an uninsured motorist under the doctrine of res ipsa
loquitur, we ultimately affirm the grant of summary judgment in
favor of Safeco.

¶9 Under Utah law, the definition of an “uninsured motor
vehicle” includes “an unidentified motor vehicle that left the
scene of an accident proximately caused by the motor vehicle
operator.” Utah Code Ann. § 31A-22-305(2)(b) (LexisNexis 2014).
However, to prove that such a vehicle caused an accident, the
claimant must “show the existence of the uninsured motor
vehicle by clear and convincing evidence consisting of more than
the covered person’s testimony.” Id. § 31A-22-305(6).

¶10 The doctrine of res ipsa loquitur “is essentially an
evidentiary rule that allows an inference of negligence to be
drawn when human experience provides a reasonable basis for
concluding that an injury probably would not have happened if
due care had been exercised.” King v. Searle Pharm., Inc., 832 P.2d

1. Mr. Nau argues that the district court misinterpreted the
statutory requirement that the evidence presented “to show the
existence of the uninsured motor vehicle” must consist “of more
than the covered person’s testimony” and, as a result, considered
only his wife’s testimony on the question of whether there was
debris in the road. However, the district court’s ultimate
decision rested on more than one ground, namely that the cause
of the debris was speculative. Because we resolve this appeal by
affirming the court’s independent alternative conclusion, we do
not further address whether the court misinterpreted the statute.
See State v. Beck, 2006 UT App 177, ¶ 9 n.1, 136 P.3d 1288
(“Because our ruling regarding the trial judge’s [alternative
basis] is dispositive, we need not address [the] other issues.”),
aff’d 2007 UT 60, 165 P.3d 1225.

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Nau v. Safeco Insurance Company of Illinois

858, 861 (Utah 1992). Under res ipsa loquitur, a plaintiff can “go
forward on circumstantial evidence alone” by establishing “a
rebuttable inference of negligence and causation.” Nielsen v.
Pioneer Valley Hospital, 830 P.2d 270, 273 (Utah 1992) (citation and
internal quotation marks omitted). This inference requires proof
of three elements: (1) that “the accident was of a kind which, in
the ordinary course of events, would not have happened had the
defendant used due care”; (2) that “the agency or
instrumentality causing the accident was at the time of the
accident under the exclusive management or control of the
defendant”; and (3) that “the plaintiff’s own use or operation of
the agency or instrumentality was not primarily responsible for
the accident.” King, 832 P.2d at 861.

¶11 Mr. Nau points out that “*i+t is a general rule of Utah law
that violation of a safety standard set by statute or ordinance
constitutes prima facie evidence of negligence,” Ryan v. Gold
Cross Services, Inc., 903 P.2d 423, 426 (Utah 1995), and that Utah
law prohibits drivers from operating any vehicle with a load on
a highway “unless the load and any load covering is fastened,
secured, and confined to prevent the covering or load from
becoming loose, detached, or in any manner a hazard to the safe
operation of the vehicle, or to other highway users,” Utah Code
Ann. § 72-7-409(6) (LexisNexis Supp. 2016). Mr. Nau asserts that
a jury could infer from the fact that debris was in the road that it
was left behind by an unidentified motorist who failed to use
due care in securing his or her load and that the evidence is
therefore sufficient to create an issue of fact as to whether Mr.
Nau’s accident was caused by an uninsured motorist.

¶12 In cases involving accidents caused by debris in a
roadway, whether a reasonable inference can be drawn that the
debris was left by an unidentified motorist depends on the type
of debris in question. For example, in Pfoutz v. State Farm Mutual
Automobile Insurance Co., 861 F.2d 527 (8th Cir. 1988), the United
States Court of Appeals for the Eighth Circuit held that res ipsa

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Nau v. Safeco Insurance Company of Illinois

loquitur could be employed to find that “a 200-pound diesel
engine head lying in the traffic lane of a heavily travelled
interstate highway” in Missouri raised “a reasonable inference
that a motor vehicle was hauling the engine head when it fell
onto the freeway” and that the engine head fell as a result of
negligence on the part of the hauling vehicle’s operator. Id. at
528–29. The court reasoned that “*t+he fact that the engine head
fell onto the freeway clearly shows that it was not adequately
secured” by the operator of the vehicle hauling it. Id. at 530.
Similarly, in Khirieh v. State Farm Mutual Automobile Insurance Co.,
594 So. 2d 1220 (Ala. 1992), the Alabama Supreme Court held
that the presence of a truck’s bench seat on a highway
constituted “legally sufficient evidence that a phantom
motorist’s negligence was the probable cause of the [motor
vehicle] accident” that ensued. Id. at 1223–24.

¶13 On the other hand, in Tuttle v. Allstate Insurance Co., 138
P.3d 1107 (Wash. Ct. App. 2006), the Washington Court of
Appeals rejected an argument that it could be inferred that the
negligence of an uninsured motorist was responsible for the
presence of a wheel and tire in the road that caused a subsequent
accident. The court explained that the plaintiff could not “show
that the driver [of the unidentified vehicle] had exclusive control
over the wheel and tire” because “*t+he wheel may have come off
the vehicle because a third party negligently installed it or
intentionally rolled it into the road.” Id. at 1113. Likewise, in
Bingenheimer v. State Farm Mutual Automobile Insurance Co., 100
P.3d 1132 (Or. Ct. App. 2004), the Oregon Court of Appeals held
that the mere existence of motor oil on a highway could not
establish that an accident caused by the oil was the fault of a
motor-vehicle operator:

Although an owner or operator’s negligence could
be responsible for a phantom vehicle leaking an
oil-like substance, the record does not establish that
such negligence is a more likely cause than other

20150427-CA 5 2017 UT App 44
Nau v. Safeco Insurance Company of Illinois

possible causes, such as an unknown defect in the
vehicle or recent damage to the vehicle that was
beyond the driver’s knowledge or control.

Id. at 1135.

¶14 Read together, these cases indicate that, to infer that
debris was left by the negligence of the driver of an unidentified
motor vehicle, the inference must be more than just a possible
explanation; rather, it must be the likely explanation for the
debris in the road. For example, the most likely explanation for
the presence of a 200-pound engine head or a truck bench seat
on a highway is that they fell from a motor vehicle to which they
were inadequately secured. On the other hand, the existence of
tires, wheels, and motor oil on a highway could have several
explanations apart from a motorist’s negligence in securing a
load. As we noted in State v. Cristobal, 2010 UT App 228, 238 P.3d
1096, “a reasonable inference arises when the facts can
reasonably be interpreted to support a conclusion that one
possibility is more probable than another”; but “*w+hen the
evidence supports more than one possible conclusion, none
more likely than the other, the choice of one possibility over
another can be no more than speculation.” Id. ¶ 16; see also Heslop
v. Bear River Mutual Ins. Co., 2017 UT 5, ¶ 21 (“*A+lthough
circumstantial evidence may sometimes raise an inference strong
enough to create a genuine issue of material fact on summary
judgment, to be reasonable, the inference must present
something more than pure speculation.”). Therefore, where the
existence of debris on a highway has more than one equally
likely explanation, any determination by the jury that the debris
was left by an unidentified motorist would be mere speculation.

¶15 Under the circumstances here, it was possible that the
debris Mr. Nau ran over had fallen from a motor vehicle because
the vehicle’s operator was negligent in securing a load.
However, other explanations are equally likely, and thus an

20150427-CA 6 2017 UT App 44
Nau v. Safeco Insurance Company of Illinois

inference that the debris was left by an unidentified motorist
who failed to use adequate care in securing his or her load “can
be no more than speculation.” See Cristobal, 2010 UT App 228,
¶ 16. Mr. Nau described the debris he ran over as “a piece of
rubber,” “piece of concrete,” “or piece of carpet”; “something . . .
very hard.” No further description of the debris was provided by
any witness. Like the wheel and tire in Tuttle and the oil in
Bingenheimer, concrete and rubber are materials whose presence
on the road could have a number of causes other than negligence
by an unidentified motorist. Concrete could have ended up on
the roadway due to the negligence of a roadside construction
crew or due to damage to the highway median from a snowplow
blade; rubber could have come from a tire that ruptured because
it was negligently installed by someone other than the motorist
or as a result of undetected highway conditions. The presence of
a piece of carpet on the inside lane of a freeway has fewer
alternate explanations, but Mr. Nau did not know whether the
debris was carpet, rubber, or concrete, so there was no basis for a
jury to infer that the debris was more likely a piece of carpet than
an object of concrete or rubber or “something” else “very hard.”
Thus, the circumstantial evidence presented in this case was not
sufficient to “raise an inference strong enough to create a
genuine issue of material fact on summary judgment.” Heslop,
2017 UT 5, ¶ 21.

¶16 Because Mr. Nau’s theory of the case rested on
speculation, he would have been unable to prove the three
elements of res ipsa loquitur. See King v. Searle Pharm., Inc., 832
P.2d 858, 861 (Utah 1992). And without the doctrine of res ipsa
loquitur, a jury could not infer the negligence of an uninsured
motorist or that an uninsured motor vehicle existed under the
circumstances of this case. Therefore, the district court did not
err in granting summary judgment in favor of Safeco. Affirmed.

20150427-CA 7 2017 UT App 44