This case presents the question whether an insured did all he reasonably should have done to show that the tort-feasor/driver and the owner of the vehicle he was driving were uninsured, to shift the burden of proof to the carrier of uninsured motorist coverage to prove that the tort-feasor and owner were, in fact, insured. See Ogle v. Long, 551 So.2d 914 (Ala.1989).
In August 1986, Amanda T. Steward and Joseph Hunter III were involved in an automobile accident. Steward incurred injuries and subsequently died from the injuries she received in the accident, which was caused by the alleged negligent actions of Hunter. Steward's daughter, Janice Williams, acting as administratrix of Steward's estate, sued Hunter
After the jury returned a verdict in favor of the plaintiff, MIC filed a motion for a judgment notwithstanding the verdict or in the alternative for a new trial, which was denied. On appeal, MIC contends that the plaintiff failed to prove that Hunter was uninsured or that the owner of the vehicle was uninsured and therefore failed to qualify for uninsured motorist coverage.
Under Alabama law, the term "uninsured motor vehicle" includes vehicles in which neither the owner nor the operator carries bodily injury liability insurance. Ala.Code 1975, § 32-7-23. In order to prove coverage under this section, Williams has the burden of showing that the tort-feasor, Hunter, was uninsured. Barnes v. Tarver, 360 So.2d 953, 956 (Ala.1978) ("[e]very jurisdiction which has considered the issue holds that the burden of proving entitlement to coverage under an uninsured motorist endorsement is upon the claimant"). Williams must prove not only that the tort-feasor driver was uninsured, but also that the owner of the vehicle was uninsured. Higgins v. Nationwide Mutual Ins. Co., 291 Ala. 462, 282 So.2d 301 (1973).
Williams acknowledges her burden of proving that Hunter was uninsured, but submits that she falls within the exception adopted by this Court in Ogle, where the Court recognized an exception to the general rule that the burden of proof rests upon the claimant. The Court stated that if the claimant can show that he used "reasonable diligence to ascertain the uninsured status of the tort-feasor and such information was unobtainable," the burden would shift to the carrier of uninsured motorist coverage to prove that the tort-feasor was, in fact, insured. 551 So.2d at 915-16. Therefore, if Williams used "reasonable diligence" to ascertain that Hunter was uninsured, then the burden is cast upon MIC to go forward with evidence that the tort-feasor/driver and the owner of the vehicle were, in fact, insured.
In the Ogle case, the court granted the defendant insurer's motion for a directed verdict, finding that Ogle and Evans, the plaintiffs, had failed to produce evidence of a reasonably diligent investigation sufficient to raise a presumption that the tort-feasor was uninsured. 551 So.2d at 917. The record reflected that the plaintiff had
The Court stated:
551 So.2d at 916.
The facts in the present case differ substantially from those in Ogle. The record reflects that Williams hired a process server, a Mr. York, to try to locate Hunter. The address at which Williams requested service was obtained from the police incident report. York went to the house at that address and discovered that the house was vacant. York then asked a neighbor and a postman in the neighborhood if they knew where the residents of the vacant house had moved. He received a negative response from both.
In addition to the street address that was on the incident report, the attorneys for Williams gave York a second possible address for Hunter. York discovered that this address was the former residence of an uncle with the same name, whose whereabouts were unknown to the residents. At the suggestion of the residents, York went to the home of Hunter's mother. This suggestion proved to be fruitless, for his mother said she had not seen Hunter recently and did not know where he was.
York also checked the city directories for the cities of Mobile and Prichard and found nothing. He checked at the tag registration offices and telephoned several "Joseph" or "J. L. Hunters," but did not locate the Joseph Hunter III on whom service was to be made.
York later went back to the uncle's former residence to see if the residents knew where Hunter worked. He also returned to the mother's house to learn if Hunter was married, and found out that he was not.
Williams's complaint and summons were returned "NOT FOUND." Not only was Williams unable to find Hunter, but MIC also was unable to serve process on him. The record reveals that the cross-appeal filed by MIC was also returned "NOT FOUND."
In addition to the evidence of York's attempts to locate Hunter, the jury also had before it the statement of the plaintiff's attorney that he had called the state insurance department and had received no guidance from it:
MIC argues that this statement was not evidence and that it prejudiced the interests of MIC in the eyes of the jury. This argument has no merit, for although
MIC argues that the trial court's refusal to admit into evidence the title history of the automobile was prejudicial error. Williams's counsel specifically objected at trial to the admission of this into evidence:
It is well established that rulings as to the admissibility of evidence such as that involved in this case, rest largely within the discretion of the trial court and will not be disturbed on appeal in the absence of a showing of abuse of that discretion. Russellville Flower Craft, Inc. v. Searcy, 452 So.2d 478, 480 (Ala.1984). Furthermore, the general pre-trial order in this case specified:
We hold that the trial judge did not err in excluding the evidence.
We further hold that the plaintiff presented substantial evidence to the jury regarding the ownership of the automobile driven by the tort-feasor. The policeman who investigated the accident testified that he determined that Hunter was the owner of the automobile by running a tag check, which showed the car as being registered to Hunter. It was certainly reasonable for Williams to rely upon the information furnished by the policeman.
We now address the main issue in this case, whether the plaintiff presented sufficient evidence to allow the jury to find that Hunter was uninsured.
Because of the difficulty of proving a negative, the initial burden of proving the motorist was uninsured is somewhat relaxed. See Widiss, A Guide to Uninsured Motorist Coverage, § 2.39 at 77 (1969). The quantum of proof must be enough to convince the trier of fact that all reasonable efforts have been made to ascertain the existence of an applicable policy and that those efforts have proven fruitless. Ogle v. Long, 551 So.2d at 918 (Hornsby, C.J., dissenting). In this case, the jury had substantial evidence that Williams acted with reasonable diligence in attempting to ascertain whether Hunter was insured.
While we hold in this case that there was substantial evidence that the plaintiff had exercised reasonable diligence
On a motion for a directed verdict or for a new trial or for j.n.o.v., the evidence is to be viewed most favorably to the nonmovant, here the plaintiff. Bussey v. John Deere Co., 531 So.2d 860, 863 (Ala.1988). Viewing the evidence most favorably to Williams, we hold that she produced substantial evidence of a reasonably diligent investigation sufficient to raise a presumption that Hunter was uninsured and to cast upon MIC the burden of going forward with the evidence by showing that the driver or the owner of the automobile was, in fact, insured. Thus, sufficient evidence existed to produce a conflict warranting the jury's consideration.
Therefore, MIC's motion for a directed verdict was properly denied. The judgment of the trial court is due to be, and it hereby is, affirmed.
HORNSBY, C.J., and SHORES, HOUSTON and KENNEDY, JJ., concur.