Lucia Mumm, et ux v. State Farm Mutual Auto Insurance ( 2015 )

FILED
MAY 26, 2015
In the Office of the Clerk of Court
W A State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
LUCIA MUMM and DAVID MUMM, ) No. 32323-4-111
husband and wife, )
)
Appellants, )
)
v. )
)
STATE FARM MUTUAL ) UNPUBLISHED OPINION
AUTOMOBILE INSURANCE )
COMPANY, a foreign corporation, )
)
Respondent, )
)
JOHN DOE and JANE DOES 1-10, and )
ABC CORPORATION, )
)
Defendants. )
LAWRENCE-BERREY, J. - David and Lucia Mumm appeal the summary judgment
dismissal of their claim under the UIM! phantom vehicle provision of their insurance
policy with State Farm. To have a viable claim, the Mumms must have admissible facts
corroborating their claim other than from the insured or one who has a claim under the
I Underinsured motor vehicle bodily injury coverage.
No. 32323-4-III
Mumm v. State Farm Mut. Auto. Ins.
policy. At issue is whether Mr. Mumm's statement or Ms. Mumm's doctor's chart note
could satisfY this requirement. The Mumms argue that one or both could satisfY this
requirement under the excited utterance hearsay exception. We disagree and affirm the
summary judgment dismissal.
FACTS
On July 21, 2010, Lucia Mumm was riding her bicycle to work on a road that runs
through Walla Walla Community College. According to Ms. Mumm, at about 8:25 a.m.,
a car passed her on the left and abruptly turned to the right in front of her to enter a
parking area on the campus. To avoid impact, Ms. Mumm braked quickly and fell offher
bike, injuring her right hand and thumb. Ms. Mumm did not have time to locate
witnesses to the accident, and the driver of the "phantom vehicle" did not stop.
Ms. Mumm continued the remaining one-half mile to work on her bike, but
discovered her hand was more seriously injured than she initially recognized. Her
employer, Dixie Liening, gave her a ride home. Ms. Mumm's husband, David Mumm,
drove Ms. Mumm to a Walla Walla clinic where she was examined, treated, and released.
Ms. Mumm told her husband that a car caused the accident.
A clinic chart note indicates that at 9:24 a.m., Joanne Schmitz, M.D., ordered a
right thumb x-ray. Another clinic chart note shows that Ms. Mumm was then seen by
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Michael Wilwand, D.O., at 9:55 a.m. This note indicates that Ms. Mumm rated her pain
at a "3/10." Clerk's Papers (CP) at 44. The note did not indicate that Ms. Mumm was
agitated or distraught about the incident. To the contrary, Dr. Wilwand observed: "A
[n]orrnal appearing 38yo female with her husband and children today, answers questions
appropriately, memory intact, mood and affect appropriate." CP at 45.
Dr. Luisa Scholar treated Ms. Mumm. Her chart note, signed at 10:23 a.m.,
reported: "LUCIA MUMM, 38 year old female, comes in today to be seen for a bike
injury she fell avoiding a car and hit the RT thumb." CP at 93. Ms. Mumm was
diagnosed with an injured metacarpophalangeal joint and a sprained ulnar collateral
ligament.
At the time of the accident, the Mumms were insured through State F arm, which
provided uninsured/underinsured motorist bodily injury benefits in the amount of
$100,000 per person and $300,000 per accident. The underinsured motor vehicle bodily
injury provision provided in part:
Underinsured Motor Vehicle means a land motor vehicle ....
the owner or driver of which remains unknown and which causes bodily
injury to the insured. If there is no physical contact between that land
motor vehicle and the insured or the vehicle the insured is occupying, then
the facts of the accident must be corroborated by competent evidence other
than testimony of the insured or any other person who has a claim under
this coverage or under Underinsured Motor Vehicle Property Damage
Coverage.
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CP at 53. "Insured" means, among other things, 'you" and "resident relatives." CP at
53.
On September 10,2012, Ms. Mumm reported the incident to State Farm. State
Farm commenced an investigation and recorded statements from Ms. Mumm and Ms.
Liening. In her statement, Ms. Mumm described the incident as follows:
I am certain that plenty of people probably saw it like I said it's a busy time
of day and there was a lot of-there's always a lot of people walking to
classes, but I did not, urn, speak to anyone and didn't take time to seek out a
witness. . . . I was, uh, sort of not having any idea that I was injured very
badly. I was having the whole (inaudible) and thinking, uh, oh, gosh I­
I-my hand hurts and, uh, hey, I gotta get to work, and my boss is
somebody who does not like me to be late. . .. I just really thought ... I'll
put a Band-Aid on it when I get to work and ... in the meantime ... during
the time it took me to ... get my bike back standing up the car had already,
you know, disappeared.
CP at 39.
Ms. Liening recalled that Ms. Mumm had been hurt in a bicycle accident and that
she was pale and in pain when she showed up to work. Ms. Liening described Ms.
Mumm after the accident as "shaken" and "in shock." CP at 62. However, she could not
recall if Ms. Mumm mentioned anything about a vehicle being involved in the accident.
When pressed, she stated, "I honestly do not know" how the accident happened.
CP at 62.
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State Farm denied the Mumms' claim for VIM bodily injury benefits based on the
absence of any witness to properly corroborate Ms. Mumm's claim that a phantom
vehicle caused her injury. State Farm explained that its policy for underinsured motorists
required that "the facts of the accident ... be corroborated by competent evidence other
than testimony ofthe insured or any other person who has a claim under this coverage."
CP at 65 (bold in original) (emphasis added).
On July 19,2013, the Mumms filed a lawsuit against State Farm, alleging among
other things, negligence, breach of contract, bad faith, and violation of the insurance fair
conduct act, chapter 48.30 RCW. State Farm filed an answer and counterclaim for
declaratory relief asking the court to find that there was no VIM coverage for Ms.
Mumm's phantom vehicle claim. State Farm asserted: "Because Lucia Mumm is an
insured as that term is defined by State Farm[,] there must be another corroborating
witness to the facts of the July 21,2010 bicycle accident .... There is no such
corroborating witness." CP at 19.
State Farm moved for summary judgment dismissal of the Mumms' claims,
arguing that the absence of independent corroborating evidence of the phantom vehicle
precluded the Mumms, as a matter of law, from establishing their claims. The Mumms
opposed summary judgment, submitting (1) a declaration that stated Ms. Mumm was
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crying, shaking, and in shock and "considerable pain,,2 when she told Dr. Scholar about
how the accident occurred, (2) a declaration from Mr. Mumm stating that Ms. Mumm was
"crying and was upset,,3 and appeared to be in shock when she told him that a car caused
the accident, and (3) Dr. Scholar's clinic note. State Farm replied that Ms. Mumm's
hearsay statements to her husband, a co-plaintiff, and to personnel at the clinic did not
meet the criteria for admissibility as excited utterances. As to her statements to medical
personnel, State Farm argued that by the time Ms. Mumm was making statements at the
clinic, she was no longer under the "stress of excitement caused by the event" as required
by ER 803(a)(2).
The court granted State Farm's motion, ruling:
There is no coverage under State Farm policy No. L211-544-DlO-47E for
plaintiff Lucia Mumm's uninsured motorist claim arising from the bicycle­
phantom motor vehicle accident of July 21,2010.
CP at 103.
The court denied the Mumms' motion for reconsideration, explaining:
[T]he only available facts are that the statement was made at the emergency
room an hour or so after Ms. Mumm's fall from her bike and that she was
injured and in pain. The problem is that these facts do not by themselves
demonstrate that the statement in Dr. Scholar's medical note was the
product of an excited utterance. . .. The only evidence of an excited
2 CP at 86.
3 CP at 89.
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utterance is the one~sentence notation by Dr. Scholar: "Seen for a bike
injury she fell avoiding a car and hit the RT thumb ...." The medical
record ... is unaccompanied by any description of the circumstances of the
information or, for that matter, the source of the information .... There is
no testimony that any statement was spontaneous or instinctive.
CP at 122~23.
ANALYSIS
The Mumms contend that the trial court erred in granting State Farm's motion for
summary judgment, alleging there are genuine issues of material fact regarding whether
they have UIM coverage under their insurance policy. Specifically, they argue that Ms.
Mumm's statements to her husband and doctor are corroborating evidence of the
"phantom vehicle" accident and that the trial court erred in refusing to consider them as
excited utterances. State Farm counters that the declarations submitted by the Mumms
are insufficient corroboration of a phantom vehicle and, therefore, summary judgment·
dismissal was proper. Specifically, State Farm contends that Mr. Mumm does not qualifY
as an independent witness because he is a named plaintiff in the lawsuit and that Dr.
Scholar's chart note is not an excited utterance because it does not indicate who provided
the information about the accident or whether Ms. Mumm was still under the stress of the
accident when she purportedly made the statement to Dr. Scholar.
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Summary judgment is properly granted "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 the moving party is entitled to a
judgment as a matter oflaw." CR 56(c). In a dispute concerning insurance coverage, the
question of whether a particular claim is covered by an unambiguous insurance policy is a
question of law to be determined by the court. Weyerhaeuser Co. v. Aetna Cas. & Sur.
Co., 123 Wn.2d 891,897,874 P.2d 142 (1994). Evidence must be considered in the light
most favorable to the nonmoving party. Gerken v. Mut. ofEnumclaw Ins. Co., 74 Wn.
App. 220, 225, 872 P.2d 1108 (1994). We review evidentiary rulings made in connection
with a summary judgment ruling de novo. Ross v. Bennett, 148 Wash. App. 40, 45, 203
P.3d 383 (2008).
By statute, an insurer may condition UIM benefits on corroboration when the
claimant alleges that a "phantom vehicle" caused his or her damages. RCW 48.22.030(8).
The insurer may require corroboration from someone other than the insured or a person
having an underinsured motorist claim. RCW 48.22.030(8)(a). The statute provides in
part:
For the purposes of this chapter, a "phantom vehicle" shall mean a motor
vehicle which causes bodily injury, death, or property damage to an insured
and has no physical contact with the insured or the vehicle which the
insured is occupying at the time of the accident if:
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No. 32323-4-III
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(a) The facts of the accident can be corroborated by competent
evidence other than the testimony of the insured or any person having an
underinsured motorist claim resulting from the accident.
RCW 48.22.030(8).
Under Washington law, an automobile policy must specifically contain the
independent corroboration requirement set forth in RCW 48.22.030(8) for any claim
arising from an incident with a phantom vehicle in order to enforce that statutory
requirement. Liijestrandv. State Farm Mut. Auto. Ins. Co., 47 Wash. App. 283, 290, 734
P.2d 945 (1987).
"A party cannot rely on inadmissible hearsay in response to a summary judgment
motion." Lynn v. Labor Ready, Inc., 136 Wash. App. 295, 309,151 P.3d 201 (2006). Here,
the superior court decided that the foundational requisites for an excited utterance under
ER 803(a) were not met because Dr. Scholar's chart note had no description of the
circumstances of the information or its source. The Mumms argue that whether Ms.
Mumm made an excited utterance is a genuine issue of material fact, and the trial court
improperly resolved a factual issue in favor of the party moving for summary judgment.
For the reasons discussed below, the trial court properly excluded the Mumms' hearsay
evidence.
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The Mumms first argue that the trial court should have considered Ms. Mumm' s
statement to her husband as corroborating evidence of the phantom vehicle accident.
However, Mr. Mumm does not satisfy the requirements of either RCW 4S.22.030(S)(a) or
the State Farm insurance policy as a corroborating witness. First, under the statute and
the policy, Mr. Mumm is precluded from being a witness because he has a claim under
the policy. In addition, under the policy, an insured is not a competent witness. Mr.
Mumm, a "resident relative," is an insured under the definitions section. Thus, Mr.
Mumm is precluded from providing evidence relating to the accident.
The Mumms next contend that the trial court erred in refusing to consider Dr.
Scholar's chart note as corroborating evidence. They argue that the evidence, evaluated
in their favor, shows that one hour or less passed between the accident and Ms. Mumm's
statement to Dr. Scholar and that she was in pain and shock when she made the statement.
They argue, "it is hard to believe that during that time [Ms. Mumm] reviewed the
language in the State Farm policy to learn that she needed corroborating evidence and had
time and clarity of mind to fabricate a story." Br. of Appellant at 17.
An excited utterance is "[a] statement relating to a startling event or condition
made while the declarant was under the stress of excitement caused by the event or
condition." ER S03(a)(2). As this definition indicates, a statement qualifies as an excited
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No. 32323-4-III
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utterance when three foundational requirements are satisfied. First, a startling event or
condition must have occurred. Second, the statement must have been made while the
declarant was under the stress of excitement caused by the event or startling condition and
without opportunity to deliberate or fabricate. Third, the statement must relate to the
startling event or condition. State v. Chapin, 118 Wn.2d 681,686, 826 P.2d 194 (1992).
Ideally, the statement should be made "contemporaneously with or soon after the startling
event." Id. at 688. A declarant's sworn statement is not competent evidence to establish
the foundational requirements of the excited utterance hearsay exception. See Burmeister
v. State Farm Ins. Co., 92 Wash. App. 359, 370, 966 P.2d 921 (1998).
"[A] state of nervousness or anxiety following an accident does not alone ensure
the spontaneity or reliability of a self-serving statement." Id. The crucial question is
"whether the declarant was still under the influence of the event to the extent that the
statement could not be the result of fabrication, intervening actions, or the exercise of
choice or judgment." State v. Briscoeray, 95 Wn. App. 167,173,974 P.2d 912 (1999).
As the time between the event and the statement lengthens, the declarant has more time
for reflective thought. Chapin, 118 Wash. 2d at 688. Nevertheless, a statement made hours
after the startling event may constitute an excited utterance if the declarant remains under
the stress of the event. Id. For example, in State v. Flett, this court held that a statement
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made by a rape victim to her daughter seven hours after the alleged incident was
admissible as an excited utterance. State v. Flett, 40 Wash. App. 277, 287, 699 P.2d 774
(1985). The court held that "the stress of contact with [the rapist's wife at a grocery
store] just prior to the statement-were all part of a 'continuous process' satisfYing the
elements of the excited utterance exception." Id.
As noted above, the second foundational requirement for an excited utterance is
that the declarant be under the stress of excitement of the event and without opportunity
to deliberate or fabricate. The second foundational requirement is stated in the
conjunctive. Therefore, simply because Ms. Mumm did not have the opportunity to read
her insurance policy and fabricate her story prior to seeking medical treatment does not
automatically qualifY the statement in her doctor's chart note as an excited utterance.
If we were to presume that Ms. Mumm was the source of information for her
doctor's chart note, there still are no competent facts to establish that she was under the
stress of the exciting event when she made her statement to her doctor. To the contrary,
Dr. Scholar's note suggests the opposite. He notes that Ms. Mumm's blood pressure was
114172, her heart rate was 73, her pulse was regular, and that she was "[a]lert" and in "no
distress." CP at 94. Evidence that the declarant had calmed down before making a
statement tends to negate a finding of spontaneity. State v. Ramires, 109 Wash. App. 749,
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758,37 P.3d 343 (2002).
These facts are even more problematic for the Mumms than the facts presented in
Burmeister. In that case, the plaintiff-insured lost control of her car and slid down an
embankment. Burmeister, 92 Wash. App. at 361-62. The plaintiff told a police officer who
spoke with her in the ambulance that an oncoming car caused her to lose control of her
car. The court held that the plaintiff failed to provide admissible facts that would
establish the existence of a phantom vehicle because she failed to "submit affidavits from
the police officer, the paramedics, or the emergency room workers to show that she was
still under the influence of the accident at the time the statement was made." Id. at 369.
In holding that the claimant failed to meet this foundational requirement, the court
explained,
Here, the officer's report does not reveal [Ms.] Burmeister's
demeanor or the seriousness of her injuries. The emergency reports indicate
that she complained of head, neck, and back injuries but do not tell us the
severity ofthese injuries or whether she was in a state ofexcitement from
those injuries at the time the statement was made.
Id. at 370 (emphasis added).
Here, greater time had transpired between the injury and the claimed excited
utterance than presented in Burmeister. Moreover, the medical records here affirmatively
establish that Ms. Mumm was not in distress when she purportedly made the statement to
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Dr. Scholar. The Mumms fail to meet the foundational requirement that Ms. Mumm's
purported statement to Dr. Scholar was made while she was still under the stress of the
accident. Thus, the Mumms cannot demonstrate the existence of a genuine issue of
material fact to prevent summary judgment. Summary judgment was, therefore, properly
granted.
Affirm.
A majority of the panel has determined this opinion will not be printed in the
Washington Appellate Reports, but it will be filed for public record pursuant to
RCW 2.06.040.
Lawrence-Berrey, J.
WE CONCUR:
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