This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1998).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

CX-00-902

 

 

Laura Rockis,

Appellant,

 

vs.

 

State Farm Insurance Company,

Respondent.

 

 

Filed December 12, 2000

Affirmed

Anderson, Judge

 

Beltrami County District Court

File No. CX991232

 

George L. Duranske, III, Duranske Law Firm, 1435 Anne Street NW, P.O. Box 1383, Bemidji, MN 56619-1383 (for appellant)

 

Charles Romaine Powell, Robert M. Light, Powell, Powell & Light, 713 Beltrami Avenue, P.O. Box 908, Bemidji, MN  56619-0908 (for respondent)

 

            Considered and decided by Klaphake, Presiding Judge, Harten, Judge, and Anderson, Judge.


U N P U B L I S H E D   O P I N I O N

ANDERSON, Judge

            Appellant-insured contests the district court’s grant of summary judgment to respondent-insurer, arguing there is a material issue of fact as to whether her automobile collision was caused intentionally or happened by accident.  Because appellant’s interrogatory answers and deposition testimony, the only admissible evidence concerning the events of the collision, do not permit the inference that the collision was an accident, the district court correctly concluded as a matter of law that appellant could not recover under the terms of her underinsured motorist insurance policy.

FACTS

            In 1993, appellant Laura Rockis visited California and stopped her automobile at a traffic light about ten feet behind a truck.  When the light turned green, the truck driver, Con Ha, put the truck into reverse gear and collided with appellant’s vehicle.  Shortly thereafter, appellant presented an uninsured motorist claim to respondent State Farm Insurance Company, successfully settling for $2,500.  Respondent later learned that Con Ha had been insured by Farmer’s Insurance Group and successfully obtained net liability policy proceeds of $12,500.  

            On October 7, 1999, appellant commenced an action against State Farm for underinsured motorist benefits, contending that she sustained permanent heart injuries from the accident and that those injuries were not discovered until after her 1993 claim settled.    In an April 1999 interrogatory answer, appellant described the accident:

I was at a red light behind an old Chevy truck and when the light turned green he put his truck in reverse and rammed me.  They had turned around and looked at us before the light turned green. 

 

In her August 1999 deposition, appellant testified:

A. Yes, they turned around and looked at us.  We were far enough back they could see that it was a new, out of state vehicle and when the light turned green that truck went in reverse and just rammed us * * *.

Q.  And you could see that he did it intentionally?

A. Absolutely.

* * * *

A.  I was extremely upset because they pointed at my license plate and laughed and laughed and laughed.

 

Appellant, by deposition, testified that she believed the truck’s occupants staged the accident as part of an insurance scam and that they remained at the accident scene.

            On February 17, 2000, respondent moved for summary judgment, arguing that there was no genuine issue as to any material fact and that it was entitled to judgment as a matter of law because underinsured motorist coverage is not available for intentional acts.   In response, appellant submitted an affidavit stating that her deposition testimony was inaccurate.  Appellant explained that contemporaneous news reports about staged auto accidents in California led her to conclude that the collision was not accidental, but she emphasized that her conclusion was merely her own opinion. 

            The district court determined that it was undisputed that Con Ha intentionally caused the accident.  The district court reasoned that, even crediting appellant’s explanation that it was merely her opinion that the collision had been a staged accident, appellant did not recant her factual testimony about what she saw and how the truck hit her car.  The district court found that appellant’s uncontroverted testimony showed Con Ha intentionally caused the collision.  Finding the facts undisputed and determining that respondent was entitled to judgment as a matter of law, the district court granted respondent’s motion for summary judgment.          

D E C I S I O N

            Appellant claims that the district court erred by granting summary judgment to respondent because a genuine question of fact exists as to whether Con Ha intentionally caused the collision. 

            Summary judgment is proper if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that either party is entitled to  judgment as a matter of law.  Minn. R. Civ. P. 56.03. On appeal from summary judgment, we determine whether any issues of material fact exist and whether the district court erred in its application of the law.  Offerdahl v. University of Minn. Hosp. & Clinics, 426 N.W.2d 425, 427 (Minn. 1988).  In deciding whether any genuine issues of material fact exist, we are to view the facts in the light most favorable to the nonmoving party.  Id.  Although the burden is on the moving party to show the absence of any material fact, once the movant has supported the motion, “the opponent must show that a material issue of fact remains in dispute by presenting specific admissible facts giving rise to a factual question.”  Bixler by Bixler v. J.C. Penney Co., 376 N.W.2d 209, 215 (Minn. 1985).

            The parties do not dispute that, to recover damages from State Farm under the terms of her insurance policy, appellant’s bodily injury must be caused by an accident, not by an intentional act.  See McIntosh v. State Farm Mut. Auto. Ins. Co., 488 N.W.2d 476, 478-79 (Minn. 1992) (explaining the purpose of uninsured motorist coverage and distinguishing an accident from an intentional act).  Respondent argues that appellant’s deposition testimony and interrogatory answers show the collision was intentional and that there is no admissible evidence showing otherwise. 

            Appellant offers five arguments supporting the existence of a fact issue about whether the collision was intentionally caused: (1) Con Ha’s insurer would not have settled the claim in 1994 had the collision been intentional; (2) had the intent defense been available in 1994, respondent State Farm would have raised it and not paid appellant’s claim; (3) the accident report states that Con Ha “put it [the truck] into reverse by accident and backed into [appellant’s vehicle]”; (4) appellant’s assumption that the collision was staged was the result of media suggestion; and (5) the district court did not view the collision from the perspective of Con Ha, the tortfeasor.

            Appellant’s first two contentions lack evidentiary support.  There are no affidavits, testimony, or other evidence showing that either insurance company would have refused to pay in light of a disputed claim that the collision was intentional.  Appellant’s argument has some merit (although it does not take into account that insurers settle cases for many reasons, not all of which are related to the facts of a specific case), but evidentiary support is required to survive summary judgment.  SeeDLH, Inc. v. Russ, 566 N.W.2d 60, 70  (Minn. 1997) (opposing party must show more than “some metaphysical doubt” as to material facts).

            Next, appellant argues that the collision report creates a fact issue. But respondent successfully objected to this evidence as inadmissible under Minn. Stat. § 169.09, subd. 13(b) (1998), which provides that no accident report shall be used as evidence in any trial, civil or criminal.  Id.  An accident report may only be used to impeach the testimony of the officer who prepared the report.  Larson v. Montpetit, 275 Minn. 394, 400-04, 147 N.W.2d 580, 585-87 (1966).   In this case, appellant did not present an affidavit or oral testimony from the officer who prepared the report.  Because the collision report, although attached to appellant’s responsive pleading, would not be admissible at trial, it cannot be used to defeat respondent’s motion for summary judgment.  See Hopkins by LaFontaine v. Empire Fire & Marine Ins. Co., 474 N.W.2d 209, 212 (Minn. App. 1991) (“Evidence offered to support or defeat a motion for summary judgment must be such evidence as would be admissible at trial.”).  Accordingly, the district court correctly excluded the accident report.    

            Appellant’s fourth claim also fails to support reversal.  Appellant’s affidavit states that her deposition testimony was the product of media suggestion about insurance scams.  Even if true, her affidavit is not sufficient to create an issue of fact. See Banbury v. Omnitrition Int’l, Inc., 533 N.W.2d 876, 881 (Minn. App. 1995) (stating a self-serving affidavit that contradicts earlier damaging deposition testimony is not sufficient to create a genuine issue of material fact unless there is a plausibleexplanation for the incongruity).  Appellant’s affidavit, though explaining the basis for her opinions, does not negate her observations that Con Ha and his passenger saw her before putting the truck in reverse gear, “rammed” her car, and at some point, laughed.

            Finally, appellant’s fifth argument -- that the district court was required to view the collision from the perspective of the tortfeasor -- does not support reversal.  Appellant did not present any evidence of the accident from Con Ha’s perspective apart from her own observations of his actions.

            If the moving party has sustained its burden of proof and has negated an essential element of the nonmovant's case, the nonmoving party must present affirmative evidence to defeat the properly supported motion.  Carlisle v. City of Minneapolis, 437 N.W.2d 712, 715 (Minn. App. 1989).  In this case, the only admissible evidence concerning the facts of the collision appears in appellant’s interrogatory answers and deposition testimony.  That evidence shows that (1) the occupants of the truck turned around and looked at appellant; then the light turned green; then the truck went into reverse and “rammed” appellant’s car and “not just a little bit”; (2) about ten feet separated the vehicles; and (3) the driver and passenger of the truck stayed at the collision scene.   At some point, the truck’s occupants “laughed and laughed and laughed.”

            None of this evidence suggests that the collision was an accident.  Indeed, the fact that the occupants of the truck turned around and looked at appellant before “ramming” into her car and “laughed” permits only the inference of an intentional act.  As such, respondent has met its burden of negating an essential element of appellant’s claim, and the burden shifts to appellant.  In response, appellant has not presented any additional admissible evidence that allows the inference of an accidental collision.  Consequently, appellant has not met her burden of showing that a material fact issue remains as to whether the collision was intentionally caused.  We conclude that the district court properly granted summary judgment on the basis that appellant was not entitled to underinsured motorist benefits because her collision was the product of an intentional act.

            Affirmed.