Ray v. LM General Insurance Company

• Court: District Court, D. Arizona
• Decided: August 29, 2019
• Docket: 4:17-cv-00431
• Status: Unknown

Opinion

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA

9 Bradley D Ray, No. CV-17-00431-TUC-RM

10 Plaintiff, ORDER

11 v.

12 LM General Insurance Company, a Massachusetts corporation, 13 Defendants. 14

15 Pending before the Court is Defendant LM General Insurance Company’s1 Motion 16 for Summary Judgment (Doc. 48) and Plaintiff Bradley Ray’s Motion to Strike Defendant’s 17 Response to Plaintiff’s Separate Statement of Facts in Support of Response to Motion for 18 Summary Judgment (Doc. 56). For the reasons explained below, the Court will grant both 19 motions.2 20 I. Motion to Strike 21 On February 15, 2019, Defendant filed a Motion for Summary Judgment (Doc. 48) 22 and an accompanying Statement of Facts (Doc. 49). Plaintiff filed his Response in 23 Opposition to Defendant’s Motion for Summary Judgment (Doc. 52), along with a 24

25 1 Plaintiff originally named as Defendants “Liberty Mutual Insurance Group, a Massachusetts corporation” and “Liberty Mutual Insurance Company.” (Doc 1-3). 26 Defendant has asserted that the properly named defendant in this matter is “LM General Insurance Company, a Massachusetts corporation.” (Doc. 7 ¶ 5). 27 2 Plaintiff requested oral argument on both pending Motions. However, the parties’ briefs thoroughly present the issues, and the Court finds that the Motions are suitable for 28 resolution without oral argument. Accordingly, Plaintiff’s requests for oral argument are denied. 1 Response to Defendant’s Separate Statement of Facts and his own Separate Statement of 2 Facts (Doc. 53). Defendant then filed a Reply to Plaintiff’s Response to Defendant’s 3 Motion for Summary Judgment. (Doc. 54.) Along with its Reply, Defendant also filed a 4 “Response to Plaintiff’s Separate Statement of Facts” (Doc. 55), responding paragraph by 5 paragraph to Plaintiff’s Separate Statement of Facts (Doc. 53). 6 Plaintiff has filed a Motion to Strike Defendant’s Response to Plaintiff’s Separate 7 Statement of Facts. (Doc. 56.) Plaintiff asserts that Defendant’s filing (Doc. 55) was 8 procedurally improper and should be stricken. Defendant argues that it merely “asserted its 9 response and objections to those facts in Plaintiff’s Statement of Facts that Defendant 10 disputed.” (Doc. 57 at 2.) The Court agrees that Defendant’s filing (Doc. 55) was not 11 authorized by the rules. 12 A party may move to strike “any part of a filing or submission on the ground that it 13 is prohibited (or not authorized) by a statute, rule, or court order.” LRCiv. 7.2(m). Local 14 Rule of Civil Procedure 56.1(a) and (b) provides that parties moving and responding to a 15 motion for summary judgment must submit separate statements of material fact. Rule 16 56.1(b) further specifies that, “[n]o reply statement of facts may be filed.” The moving 17 party may not file “a separate responsive memorandum to any additional facts in the non- 18 moving party’s separate statement of facts.” Marceau v. Int’l Broth. of Elec. Workers, 618 19 F. Supp. 2d 1127, 1141 (D. Ariz. 2009). 20 Defendant asserts that Federal Rule of Civil Procedure 56(c)(2) and 56(e) compel 21 the contrary result. Federal Rule of Civil Procedure 56(c)(2) provides that “[a] party may 22 object that the material cited to support or dispute a fact cannot be presented in a form that 23 would be admissible in evidence.” Fed. R. Civ. P. 56(c)(2). Defendant argues that it follows 24 that a moving party must also “have the opportunity to dispute and object to the [non- 25 moving party’s] stated facts in support of their position.” (Doc. 57 at 2-3.) While it is true 26 that Federal Rule of Civil Procedure 56(c)(2) authorizes a moving party to dispute the 27 admissibility of the non-moving party’s evidence, such objections “must be included in the 28 responding party’s reply memorandum for the underlying motion and may not be presented 1 in a separate responsive memorandum.” E.E.O.C. v. AutoZone, Inc., No. 06-cv-0926-PHX- 2 SMM, 2008 WL 2509302, at *1 (D. Ariz. June 18, 2008). Defendant, the moving party, 3 did not include its objections in its Reply (Doc. 54) but instead filed a separate unauthorized 4 pleading (Doc. 55). 5 Defendant’s reliance on Federal Rule of Civil Procedure 56(e) also misses the mark. 6 That rule provides that “[i]f a party fails to properly support an assertion of fact or fails to 7 properly address another party’s assertion of fact . . . the court may . . . consider the fact 8 undisputed for purposes of the motion.” Fed. R. Civ. P. 56(e). Defendant therefore argues 9 that it is “obligated” to submit a separate filing responding to each fact in Plaintiff’s 10 separate statement of facts “to prevent a finding from the Court that those facts are 11 undisputed.” (Doc. 57.) This Court has previously explained that this argument “reflects a 12 misunderstanding of the summary judgment standard.” Hunton v. Am. Zurich Ins. Co., No. 13 CV-16-00539-PHX-DLR, 2018 WL 1182552, at *5 (D. Ariz. Mar. 7, 2018). A party 14 moving for summary judgment bears a burden of demonstrating that “there is no genuine 15 dispute as to any material fact and the movant is entitled to judgment as a matter of law.” 16 Fed. R. Civ. P. 56(a). A moving party does not need to “prevent a finding from the Court 17 that [the non-moving party’s] facts are undisputed” (Doc. 57), rather, the undisputed nature 18 of material facts is precisely what a party must demonstrate to prevail on a motion for 19 summary judgment. 20 The Court finds that Defendant’s “Response to Plaintiff’s Separate Statement of 21 Facts” (Doc. 55) is not authorized by either the Local Rules of Civil Procedure or the 22 Federal Rules of Civil Procedure. Plaintiff’s Motion to Strike (Doc. 56) will be granted and 23 Defendant’s unauthorized filing (Doc. 55) will not be considered in the Court’s resolution 24 of the pending Motion for Summary Judgment (Doc. 48). 25 II. Motion for Summary Judgment 26 Defendant argues for summary judgment on all three claims raised by Plaintiff. 27 (Doc. 48.) First, Defendant argues that Plaintiff’s breach of contract claim fails as a matter 28 of law because Plaintiff has not presented the “corroborating evidence” required by A.R.S. 1 § 20-259.01(M) and by Plaintiff’s insurance policy. Second, Defendant argues that 2 summary judgment must be granted on Plaintiff’s bad-faith claim because Plaintiff has 3 failed to produce any evidence of bad faith. Finally, Defendant argues that Plaintiff’s 4 negligence claim is not recognized under Arizona law, and that summary judgment must 5 therefore be granted on the negligence claim. 6 A. Factual Background3 7 This action arises from Defendant’s refusal to pay on Plaintiff’s automobile 8 insurance claim. Plaintiff alleges that an accident occurred because a “phantom vehicle” 9 cut him off, forcing him to swerve and crash. (Doc. 1-3 ¶ 7.) Plaintiff filed suit in Pima 10 County Superior Court on July 31, 2017, and Defendant removed the case to this Court. 11 (Doc. 1.) Plaintiff did not object to removal and stipulated that this Court has jurisdiction. 12 (Doc. 5.) This Court has proper diversity jurisdiction because Plaintiff is a resident of 13 Arizona, Defendant is organized under the laws of the State of Illinois and has its principal 14 place of business in Massachusetts, and Plaintiff seeks the full $100,000 coverage provided 15 by the insurance policy. (Doc. 1 ¶ 9.) 16 1. The Accident 17 On December 3, 2015, Plaintiff crashed his 2006 Harley Davidson motorcycle as 18 he was driving northbound on Oracle Road near the town of Oro Valley. (Doc. 49 at ¶ 1; 19 Doc. 53 at ¶ 1.) At the time of the accident, Oracle Road was under construction. (Doc. 49 20 at ¶ 3; Doc. 53 at ¶ 3.) The inner (or left) northbound lane was closed for construction and 21 blocked off by traffic control barricades. (Doc. 49 at ¶ 3; Doc. 53 at ¶ 3.) The outer (or 22 right) northbound lane was in normal use, and what normally served as the right shoulder 23 had been converted into a temporary second lane of travel. (Doc. 49 at ¶ 3; Doc. 53 at ¶ 3.) 24 Plaintiff was travelling in what was normally the outer (or right) northbound lane, but 25 which at the time served as the inner (or left) northbound lane because traffic was also 26 traveling on the shoulder to the right. (See Doc. 49 at ¶¶ 3, 5; Doc. 53 at ¶¶ 3, 5.) The 27 accident occurred as the construction zone was ending and traffic barricades were shifting 28 3 Except as otherwise noted, the facts recounted are undisputed. (Docs. 49, 53.) 1 traffic back into the normal lanes of traffic. (Doc. 49 at ¶ 3; Doc. 53 at ¶ 3.) Plaintiff alleges 2 that the accident occurred when a car in the outside lane–normally the right shoulder–began 3 merging into Plaintiff’s lane. (Doc. 49 at ¶ 5; Doc. 53 at ¶ 5.) He alleges that when he 4 perceived this vehicle entering his lane, he was forced to brake, shift his bike to the left, 5 and crash. (Doc. 49 at ¶ 6; Doc. 53 at ¶ 6.) The other vehicle did not physically touch 6 Plaintiff’s motorcycle. (Doc. 49 at ¶ 2; Doc. 53 at ¶ 2.) 7 2. Officer Horetski’s Report 8 Oro Valley Police Officer Dan Horetski reported to the scene of the accident to find 9 Plaintiff lying on the ground but alert, conscious, and able to answer questions. (Doc. 49- 10 1 at 117.)4 Plaintiff told Officer Horetski that a vehicle travelling in the lane to his right 11 began merging into his lane, and that Plaintiff swerved to avoid the vehicle and struck a 12 construction barricade. (Id.) Officer Horetski noted that the “collision occurred as the 13 barricade[s] were shifting traffic back into the normal lanes of traffic.” (Id.) He determined 14 that Plaintiff’s motorcycle “left 36 feet of skid and struck the last barricade dividing the 15 two lanes as they merged back into the normal traffic lanes.” (Id.) Officer Horetski also 16 noted that “[w]hen looking at the barricade set up there could have been some confusion 17 as to which lane the motorcycle was to merge into as the barricades did not merge traffic 18 completely back into the appropriate lane of travel.” (Id.) No citation was issued and 19 Plaintiff was transported to University Medical Center Hospital. (Id.) 20 Officer Horetski’s report included a diagram of the accident scene, which provides 21 context for his observation that there may have been “confusion as to which lane the 22 motorcycle was to merge into” due to the barricade design. (Id. at 118.) The diagram 23 represents traffic barricades with grey dots and the skidline of Plaintiff’s motorcycle with 24 a dark black line. (Id.) It shows that, at the spot of Plaintiff’s accident, barricades were 25 shifting both lanes of traffic leftward back into their normal position. (Id.) The line of 26 barricades to the right of Plaintiff’s lane of travel, i.e. the line of barricades between what 27 is normally the right lane and the shoulder, do not fully cross Plaintiff’s lane, and so would

28 4 All record citations herein refer to the page numbers generated by the Court’s electronic filing system. 1|| have allowed Plaintiff's motorcycle to continue forward. (Id.) 2 || Officer Horetski’s Diagram

4 : 2. wT S 2 > / . 7 = / ventigs 8 . S / fe ° 76 fel: 9 □ □ / @ * 10 . ~ ; J 11 ° a | OC ° Sie J @ 12 : fl f JS 13 : gr f y & . § ; f / O 14 . } . 15 ° Sif : ] 6 , Ht 17 —_———"Vistoso Commerce Loop.3Miles = 18 As Officer Horetski later explained during his deposition: 19 20 [Traffic from the shoulder should be merging into the number 2 lane. Traffic from the number 2 lane should be merging back 21 into the number | lane. But when you look at the construction 79 setup, a motorcyclist could very easily go, I’m supposed to go straight, and it could very easily look like a car is merging into 23 me. 24 35 (Id. at 172:3-8). In other words, because the lane-tapering barriers did not extend fully to

the left across the lane that Plaintiff was traveling in, Plaintiff may have believed he could

continue forward even though he was supposed to shift to the left.

38 3. Report of Reconstructionist Joseph Manning Defendant retained accident reconstructionist Joseph E. Manning of Southwest

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1 Safety Consulting, LLC, to provide an expert opinion in this matter. Mr. Manning provided 2 a report based on his review of Officer Horetski’s report, a recorded statement of Plaintiff, 3 a repair estimate for the motorcycle, and a number of digital images of the crash scene. 4 (Doc. 49-1 at 252-56.) Mr. Manning opined that, whereas Plaintiff stated he moved to the 5 left in response to the phantom vehicle, the skid mark from his motorcycle was to the right 6 relative to the lane. (Id. at 255.) Mr. Manning found that Plaintiff “was heading towards 7 the last barricade when he applied his brakes” and that “[t]he orientation of his motorcycle 8 with respect to the orientation of the barricades suggests he was inattentive as to the 9 leftward transition of the lanes of travel.” (Id.) Mr. Manning also suggested that, while the 10 existence of the second vehicle could not be determined, “the evidence and orientation of 11 the barricades suggests that Ray’s actions may have been a response to the leftward motion 12 of a vehicle in the number two lane as it followed the path of the barricades or his response 13 may have been due to the presence of the barricade located in front of his motorcycle.” 14 (Id.) Either way, Mr. Manning concluded, “the collision was the result of inattentiveness 15 by [Plaintiff].” (Id. at 256.) Mr. Manning subsequently provided a supplemental report that 16 maintained the original report’s conclusions. (Id. at 232.) 17 4. Report of Reconstructionist Dan Wall 18 Plaintiff retained accident reconstructionist Dan Wall of Wall Accident 19 Reconstruction, Inc. (Doc. 49-1 at 266-275.) Mr. Wall reviewed Officer Horetski’s incident 20 report, transcripts of depositions of Joseph Manning, Officer Horetski, and Plaintiff, as 21 well as Defendant’s Mandatory Initial Discovery Pilot Response and police photographs 22 of the crash scene. (Id. at 266.) Mr. Wall opined that at least two vertical vehicle barriers 23 were destroyed and missing prior to the accident. (Id. at 273.) In addition, there were two 24 pre-existing sand spatter locations, which Plaintiff’s motorcycle could not have created. 25 (Id.) Mr. Wall opined that “[t]he construction company is most likely at fault for not 26 maintaining the channelizing devices and making sure that a continuous line of devices 27 were placed on the road and continued the devices to the next lane boundary.” (Id.) He 28 concluded that Plaintiff “most likely saw the car suddenly moving into his lane of travel 1 and [] emergency braked using only his rear brake.” (Id.) Although Plaintiff had stated that 2 he struck a barricade before crashing, he likely actually went down after striking a sand 3 patch. (Id.) Mr. Wall ultimately determined that “[p]oor maintenance by the construction 4 company, which caused a dangerous situation, basically caused [Plaintiff] to be confused 5 as to the continuation of the lane that he was travelling and also, to go down due to the sand 6 patches.” (Id. at 274.) Although Mr. Wall determined that poor maintenance by the 7 construction company was ultimately at fault, he also opined that the vehicle that Plaintiff 8 swerved to avoid “appears to have conducted actions in an aggressive way” because it fled 9 the scene, “demonstrating lack of responsibility,” and that the other driver “should have 10 been aware to the conditions surrounding him and adjusted his speed and position 11 accordingly to avoid contact with other vehicles.” (Id.) 12 B. Legal Standard for Summary Judgment 13 A court must grant summary judgment “if the movant shows that there is no genuine 14 dispute as to any material fact and the movant is entitled to judgment as a matter of law.” 15 Fed. R. Civ. P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). The 16 movant bears the initial responsibility of presenting the basis for its motion and identifying 17 those portions of the record, together with affidavits, if any, that it believes demonstrate 18 the absence of a genuine issue of material fact. Celotex, 477 U.S. at 323. 19 If the movant fails to carry its initial burden of production, the nonmovant need not 20 produce anything. Nissan Fire & Marine Ins. Co. v. Fritz Co., 210 F.3d 1099, 1102–03 21 (9th Cir. 2000). But if the movant meets its initial responsibility, the burden shifts to the 22 nonmovant to demonstrate the existence of a factual dispute and show (1) that the fact in 23 contention is material, i.e., a fact that might affect the outcome of the suit under the 24 governing law, and (2) that the dispute is genuine, i.e., the evidence is such that a 25 reasonable jury could return a verdict for the nonmovant. Anderson v. Liberty Lobby, Inc., 26 477 U.S. 242, 248, 250 (1986); see Triton Energy Corp. v. Square D. Co., 68 F.3d 1216, 27 1221 (9th Cir. 1995). The nonmovant need not establish a material issue of fact 28 conclusively in its favor, First Nat’l Bank of Ariz. v. Cities Serv. Co., 391 U.S. 253, 288– 1 89 (1968); however, it must “come forward with specific facts showing that there is a 2 genuine issue for trial.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 3 587 (1986) (internal citation omitted); see Fed. R. Civ. P. 56(c)(1). 4 At summary judgment, the Court’s function is not to weigh the evidence and 5 determine the truth but to determine whether there is a genuine issue for trial. Anderson, 6 477 U.S. at 249. In its analysis, the Court must accept the nonmovant’s evidence and draw 7 all inferences in the nonmovant’s favor. Id. at 255. The Court need consider only the cited 8 materials, but it may consider any other materials in the record. Fed. R. Civ. P. 56(c)(3). 9 C. Plaintiff’s Negligence and Bad-Faith Claims 10 The Court first turns to Plaintiff’s claims for negligence and bad faith, upon which 11 Plaintiff now agrees summary judgment must be granted.5 Plaintiff pled that “Defendants’ 12 failure to adequately investigate, failure to treat Plaintiff’s claims with equal consideration, 13 failure to make a good faith offer, failure to make reasonable efforts to alleviate the 14 necessity of litigation and failure to pay a reasonable amount” amounted to a breach of the 15 covenant of good faith and fair dealing.” (Doc. 1-3 ¶ 25.) Plaintiff therefore claimed 16 entitlement to punitive damages. (Id. ¶ 28.) An insurer breaches the covenant of good faith 17 and fair dealing by (1) denying or delaying payment of a claim without a reasonable basis 18 when it (2) knows it does not have a reasonable basis to do so or acts with reckless 19 disregard. Noble v. Nat’l Am. Life Ins. Co., 624 P.2d 866, 868 (Ariz. 1981). Here, Plaintiff 20 has not identified evidence that Defendant lacked a reasonable basis for denying his claim. 21 As there is no genuine dispute about any material fact, the Court will grant Defendant 22 summary judgment on Plaintiff’s bad-faith claim. 23 Plaintiff alleged a negligence claim on the grounds that he was “severely injured as 24 a direct and proximate result of the negligence of an uninsured motorist,” and that he was 25 therefore entitled to uninsured motorist benefits pursuant to his insurance agreement with 26 27 5 Plaintiff states in a footnote to his Response that “Plaintiff does not dispute that after completing reasonable discovery and investigation his claims for bad faith and the separate 28 negligence claim against Liberty should be dismissed.” (Doc. 52.) 1 Defendant. (Doc. 1-3 ¶ 29.) However, an insurance company’s duty to the insured in 2 Arizona “is defined by the terms of the policy and the implied covenant of good faith and 3 fair dealing.” Miel v. State Farm Mut. Auto Ins. Co., 912 P.2d 1333, 1340 (Ariz. App. 4 1995). A cause of action “based solely on negligence which does not rise to the level of 5 bad faith does not lie.” Id. (citing DeLaune v. Liberty Mut. Ins. Co., 314 So.2d 601, 603 6 (Fla. Dist. Ct. App. 1975)). Accordingly, Plaintiff’s negligence claim fails as a matter of 7 law, and the Court will grant Defendant summary judgment on Plaintiff’s negligence claim. 8 D. Plaintiff’s Breach-of-Contract Claim 9 Plaintiff’s remaining claim alleges that Defendant breached its automobile 10 insurance policy agreement by refusing to pay on his claim. (Doc. 1.) Defendant argues 11 that summary judgment must be granted on Plaintiff’s breach of contract claim because 12 Plaintiff has not presented “corroborating” evidence that the accident was caused by the 13 wrongful actions of a third-party as required by Arizona state law when an uninsured 14 motorist claim is “based on an accident that involved an unidentified motor vehicle and no 15 physical contact with the motor vehicle occurred.” A.R.S. § 20-259.01(M). Plaintiff 16 responds that he has presented three sources of corroborating evidence. (Doc. 52 at 3.) 17 First, Officer Horetski testified that “Plaintiff’s version of the facts is plausible, and that 18 Plaintiff was not inattentive.” (Id.) Second, Plaintiff’s expert accident reconstructionist 19 authored a report stating that “there is sufficient physical evidence at the scene, including 20 the barricade design, sand patches and skid marks, to support Plaintiff’s version of events.” 21 (Id.) Third, Defendant’s own accident reconstructionist admitted during his deposition that 22 “there is no evidence proving the incident could not have happened as represented by 23 Plaintiff” and that “it is ‘plausible’ that the crash could have occurred as Plaintiff states.” 24 (Id.) 25 1. Arizona’s Corroboration Statute 26 The Uninsured Motorist Act (“UMA”) “establishes a public policy that every 27 insured is entitled to recover damages he or she would have been able to recover if the 28 uninsured had maintained a policy of liability insurance in a solvent company.” Calvert v. 1 Farmers Ins. Co. of Ariz., 697 P.2d 684, 687 (Ariz. 1985) (citation omitted). Section M of 2 the UMA, A.R.S. § 20-259.01(M), provides: 3 If an insured makes a bodily injury or death claim under 4 uninsured or underinsured motorist coverage based on an 5 accident that involved an unidentified motor vehicle and no physical contact with the motor vehicle occurred, the insured 6 shall provide corroboration that the unidentified motor vehicle 7 caused the accident. For the purposes of this subsection, “corroboration” means any additional and confirming 8 testimony, fact or evidence that strengthens and adds weight or 9 credibility to the insured’s representation of the accident. 10 Plaintiff does not dispute that the alleged unidentified vehicle did not make physical contact 11 with him and he does not challenge the applicability of the UMA’s corroboration 12 requirement. (Doc 53 ¶ 2). 13 2. Plaintiff’s Corroborating Evidence 14 Plaintiff argues that he has presented three pieces of corroborating evidence: (1) the 15 testimony of Officer Horetski, (2) the report of Plaintiff’s expert, and (3) the deposition of 16 Defendant’s expert. (Doc. 52 at 11). First, Plaintiff argues that Officer Horetski’s 17 deposition testimony provides corroborating support for Plaintiff’s account of the accident. 18 (Id.) A review of the entire deposition transcript, however, tells a different story. Plaintiff 19 quotes the following from that testimony: 20 Q. …did you find any physical evidence that would 21 corroborate Mr. Ray’s version of what happened? 22 …The Witness: In regard to the – Mr. Ray saying that the 23 vehicle was merging into his lane, yes, based on how the traffic 24 barricades were set up, Mr. Ray could continue going northbound in the same lane of traffic that he was in; however, 25 vehicles from the shoulder would also be merging into that 26 same lane. Plaintiff cites to this testimony for corroboration of the proposition that an unidentified 27 vehicle caused the accident by swerving into Plaintiff’s lane, forcing him to brake and 28 1 causing his wreck. In context, however, it is clear that Officer Horetski testified that it was 2 Plaintiff who was confused about what lane to merge into. Immediately following the 3 above-cited statement, Officer Horetski continued by observing: 4 So, yes, there was confusion on the barricades which would 5 merge vehicles from the shoulder back into Mr. Ray’s lane and would make it appear that a vehicle was actually swerving or 6 moving into him. 7 (Doc. 49-1 at 156:20-23) (emphasis added). The following colloquy occurred only a few 8 moments later: 9 Plaintiff’s Counsel: Okay. So I understand that the way this 10 construction area is configured, if I can hold this up next to you here, it is certainly plausible that a vehicle traveling in this lane 11 here could enter Mr. Ray’s lane of travel? 12 Officer Horetski: Yes 13 Plaintiff’s Counsel: And they could do so accidentally correct? 14

15 Officer Horetski: It would have been purposefully. That’s how the traffic barricades were set up. 16 (Id. at 157:5-14) (emphasis added). Officer Horetski later testified explicitly that he 17 believed that the unidentified vehicle did nothing inappropriate and that the accident was 18 caused by the Plaintiff’s misunderstanding as to the continuation of his lane: 19

20 Defense Counsel: Is it your understanding that, based on the 21 physical evidence at the scene, that Mr. Ray was reacting to a vehicle that was following the traffic pattern of lane 2? 22

23 Officer Horetski: Yes.

24 Defense Counsel: …[Y]ou found no evidence that a vehicle in 25 the number 2 lane did anything inappropriate such as enter the number 1 lane of travel? 26

27 Officer Horetski: That’s correct. 28 (Id. at 168:6-169:5) (objections omitted). Therefore, read in appropriate context, it is clear 1 that Officer Horetski’s testimony contradicts rather than corroborates Plaintiff’s account. 2 Plaintiff next relies on the deposition testimony of Defendant’s expert accident 3 reconstructionist, Joseph Manning. Plaintiff quotes in key part Mr. Manning’s testimony 4 as follows: 5 Plaintiff’s Counsel: And that would support Mr. Ray’s version of the events that there was a vehicle moving leftward – 6 [objection omitted] 7 … Joseph Manning: It would, it would support a part of his 8 account that there may have been a vehicle moving towards the 9 left… 10 The full answer, however, provides additional context: 11 A: It would, it would support a part of his account that there may have been a vehicle moving towards the left within its 12 own lane. To what extent, we can’t define. 13 (Doc. 53 at 49:20-23) (emphasis added to portion omitted in Plaintiff’s quotation above). 14 Whereas Plaintiff’s excerpt appears to corroborate his claim that another car merged into 15 Plaintiff’s lane, the entire quote makes clear that Mr. Manning testified that the unidentified 16 vehicle, if there was one, stayed within its own lane. Mr. Manning therefore testified in 17 accordance with his report that Plaintiff falsely believed that a vehicle was merging into 18 him because of the faulty design of the barricades. 19 Finally, Plaintiff relies on the report and affidavit of his own expert, accident 20 reconstructionist Dan Wall. (Doc. 52 at 12). Plaintiff describes Mr. Wall’s conclusion as 21 “that the barricade design, sand patches, impression in the sand and skid mark all indicate 22 that Plaintiff was reacting to movement coming toward him from the left at the time of the 23 incident.” (Id.) Plaintiff, however, does not address the ultimate conclusion of Mr. Wall 24 that “[p]oor maintenance by the construction company, which caused a dangerous 25 situation, basically caused [Plaintiff] to be confused as to the continuation of the lane that 26 he was travelling . . .” (Doc. 49-1 at 274.) (emphasis added). It therefore appears that even 27 Plaintiff’s own expert agrees that it was Plaintiff, and not any unidentified vehicle, that was 28 in the wrong lane. 1 3. Discussion 2 Plaintiff argues that the above provides corroborating support for his version of 3 events. (Doc. 52.) However, Plaintiff’s burden is not to corroborate that another vehicle 4 existed. (Doc. 52.) Rather, Plaintiff must provide corroboration that “the unidentified motor 5 vehicle caused the accident,” which by its plain language suggests that the unidentified 6 motor vehicle must have been at fault. A.R.S.§ 20-259.01(M). The Court concludes that 7 while the evidence cited by Plaintiff does corroborate the existence of another vehicle, it 8 does not corroborate Plaintiff’s account that the other vehicle, rather than the barricade 9 design or Plaintiff’s own inattentiveness, “caused the accident.” Id. On the contrary, all 10 three sources of evidence cited by Plaintiff tell the same story: the accident occurred when 11 Plaintiff, due to the design of the barricades, did not realize that both lanes were merging 12 left. Plaintiff therefore failed to move to the left and consequently mistakenly believed that 13 a car in the lane to his right was merging into his lane, when in fact the other car was 14 properly following the path of travel directed by the barricades. 15 The only suggestion that the other vehicle acted improperly is contained in Dan 16 Wall’s report. Although, as discussed above, Mr. Wall agrees that the accident occurred 17 because Plaintiff was confused as to the continuation of his lane of travel, he also asserts 18 that the unidentified vehicle was nonetheless at fault. He writes that “[t]he vehicle that Mr. 19 Ray tried to avoid contact[ing] appears to have conducted actions in an aggressive way. 20 That vehicle fled the scene of the accident, demonstrating lack of responsibility. That 21 vehicle’s driver should have been aware to the conditions surrounding him and adjusted 22 his speed and position accordingly to avoid contact with other vehicles.” (Doc. 49-1 at 23 274.) 24 Were Mr. Wall’s conclusion plausible, his report would provide sufficient 25 corroboration to create a genuine issue of material fact and defeat summary judgment. The 26 Court, however, is unable to find any plausible basis for Mr. Wall’s conclusory allegation 27 that the unidentified vehicle’s driver “was responsible for [Plaintiff’s] avoidance reactions 28 to his vehicles actions.” (Id.) At his deposition, Mr. Wall was asked what the basis was for 1 his conclusion that the other vehicle was aggressive and at fault. (Id. at 355.) Mr. Wall 2 responded that the other vehicle “was merging into the motorcycle operator’s lane of 3 traffic, and that vehicle should have – you know, when you’re merging vehicles that – into 4 a continuous lane, this is Arizona law that that – that you should try to avoid contact. You 5 should merge when it’s safe to do so.” (Id.) While his contention that a driver should 6 exercise caution while merging is no doubt correct, the evidence here suggests the other 7 driver was not merging but was instead following the prescribed path of travel. 8 Mr. Wall’s statement that it is Arizona law that one “should try to avoid contact” 9 when merging apparently refers to A.R.S. § 28-729, which provides that “A person shall 10 drive a vehicle as nearly as practicable entirely within a single lane and shall not move the 11 vehicle from that lane until the driver has first ascertained that the movement can be made 12 with safety.” But the statute’s use of the language “shall not move the vehicle from that 13 lane” applies to a situation where a motorist is purposefully shifting between lanes. See 14 Bliss v. Treece, 658 P.2d 169, 172 (Ariz. 1983) (“The statutory language, ‘shall not be 15 moved,’ indicates a decision to exclude from its reach those movements which are beyond 16 the driver’s control.”) Here, the evidence is consistent that the other vehicle was not 17 shifting lanes, but instead stayed within its own lane. Therefore, the law that Mr. Wall 18 refers to as his basis for his statement that the unidentified vehicle was at fault does not 19 apply to the accident at issue. The Court cannot identify any other plausible basis for Mr. 20 Wall’s assertion that another vehicle was at fault. 21 The circumstances of this case are somewhat unusual in that Plaintiff’s expert 22 agrees with the defense theory that the accident was caused by Plaintiff’s mistaken belief 23 that his lane continued forward. And Plaintiff’s expert’s statement that the other vehicle 24 was nonetheless at fault is not supported. Under the particular circumstances of this case, 25 the Court finds that there is no genuine dispute of material fact with regard to whether 26 Plaintiff has satisfied the corroboration requirement. The Court will therefore grant 27 summary judgment for Defendant on Plaintiff’s breach-of-contract claim. 28 . . . . 1 Accordingly, 2 IT IS ORDERED that Plaintiff's Motion to Strike (Doc. 56) is granted. The Clerk || of Court is directed to strike from the record Defendant’s Response to Plaintiff’s Separate 4|| Statement of Facts (Doc. 55). 5 IT IS FURTHER ORDERED that the Clerk of Court is directed to update the || docket to substitute Defendant LM General Insurance Company, a Massachusetts 7 || corporation, for Defendants Liberty Mutual Insurance Group and Liberty Mutual Insurance 8 || Company. 9 IT IS FURTHER ORDERED that Defendant’s Motion for Summary Judgment 10|| (Doc. 48) is granted. The Clerk of Court is directed to enter judgment in favor of |} Defendant and close this case. 12 Dated this 28th day of August, 2019. 13 14 / piles □□ 16 ANGUL Bf Honorable Rostsiary □□□□□□□ 17 United States District □□□□□ 18 19 20 21 22 23 24 25 26 27 28

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