Konecny v. Federated Rural Electric Insurance Exchange

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          APPEAL FROM THE PRAIRIE COUNTY CIRCUIT COURT, NORTHERN DISTRICT [59NCV-16-33], HONORABLE TOM HUGHES, JUDGE

         James, Carter & Priebe, LLC, Little Rock, by: Daniel R. Carter and Paul J. James, for appellant.

         Friday, Eldredge & Clark, LLP, Little Rock, by: James C. Baker, Jr., and Kimberly D. Young, for separate appellee Federated Rural Electric Insurance Exchange.

         Anderson, Murphy & Hopkins L.L.P., Little Rock, by: Randy P. Murphy and Brandon T. Cole, Little Rock, for separate appellee Auto-Owners Insurance Company.

          OPINION

         ROBERT J. GLADWIN, Judge

          Appellant George Konecny appeals the denial of his uninsured-motorist benefits— specifically arguing that the Prairie County Circuit Court erred in granting summary judgment to his insurers, appellees Federated Rural Electric Insurance Exchange ("Federated") and Auto-Owners Insurance Company ("Auto-Owners") and in denying his cross-motion for summary judgment. We hold that there is no merit to appellant’s arguments and affirm the circuit court’s order.

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          I. Facts

          On August 15, 2014, Konecny, an employee of Arkansas Electric Cooperative Corporation ("AECC"), was driving an AECC pickup truck northbound on Highway 11 in Prairie County when he encountered a Jeep towing another Jeep in the center of the highway. The Jeep, which was making a u-turn in the center of the highway, caused Konecny to swerve to avoid a collision and to leave the highway. As he veered off the highway on the west side shoulder, he struck a culvert, continued, traveling northwest outside the traffic lane, and hit two trees before coming to a final rest.

          It is undisputed that there was no physical contact between the truck operated by Konecny and the Jeep. It also is undisputed that the Jeep left the scene immediately after the incident, and neither the Jeep nor its driver were ever identified.

          Michael Livesay witnessed Konecny’s accident and saw the driver of the Jeep leaving the accident scene. Arkansas State Police officer Kris McCrea investigated the wreck. Officer McCrea’s investigation confirmed that on the basis of the evidence left at the scene, the actions of the Jeep caused Konecny’s vehicle to leave the highway. Officer McCrea’s investigation confirmed that the Jeep left the scene and corroborated Livesay’s statement.

         The cause of the wreck is not disputed— the fleeing Jeep caused the wreck but did not hit Konecny’s automobile. It is also undisputed that the driver and owner of the Jeep did not file a certificate in accordance with Arkansas Code Annotated section 27-19-503 (Repl. 2014), certifying that at the time of the occurrence, the Jeep and its motorist were operating with the minimum amount of insurance required by law.

          At the time of the wreck, there were two insurance policies in effect that provided uninsured-motorist coverage to Konecny, one with appellee Federated and one with appellee Auto-Owners. Both appellees moved for summary judgment arguing that each was entitled to summary judgment because the uninsured-motorist provision required that the insured provide proof that the other vehicle was uninsured and further that contact with a hit-and-run driver was a condition precedent to coverage. Konecny responded to the motions by arguing (1) there was a statutory presumption that the fleeing driver was uninsured, and under the terms of the policies, he was entitled to coverage; (2) there were facts in dispute with respect to coverage of the other driver; and (3) the contact requirement of the insurance policies violates Arkansas public policy.

          Konecny filed a cross-motion for summary judgment against both appellee insurers. The basis for his cross-motion was that there is a statutory presumption that the fleeing driver was uninsured and that he was entitled to coverage under the terms of the policies.

          After a hearing on June 6, 2018, the circuit court granted both appellee insurers’ motions for summary judgment. The circuit court found that the plain language of both policies required physical contact before the uninsured-motorist provision of the policies was applicable. An order was filed on July 30 granting the summary-judgment motions of the appellee insurers and denying Konecny’s cross-motion for summary judgment. Konecny filed a timely notice of appeal on August 28, 2018.

          II. Standard of Review and Applicable Law

         On appellate review, the court determines if summary judgment was appropriate after considering whether the evidentiary items presented by the ...