DIANE K. STINTON, Individually and as Administrator of the Estate of Gene Allan Stinton, Deceased, Plaintiff, vs. OLD REPUBLIC INSURANCE COMPANY, Defendant.

 

No. C15-4019-LTS

 

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF IOWA, WESTERN DIVISION

 

2016 U.S. Dist. LEXIS 15921

 

 

February 10, 2016, Decided

 

 

COUNSEL:  [*1] For Diane K Stinton, Individually and as Administrator of the Estate of Gene Allan Stinton, Deceased, Plaintiff: Scott L Bixenman, LEAD ATTORNEY, Murphy, Collins & Bixenman, PLC, LeMars, IA.

 

For Old Republic Insurance Company, Defendant: Jeffrey L Goodman, LEAD ATTORNEY, Goodman & O’Brien, PC, West Des Moines, IA; William D Howard, LEAD ATTORNEY, PRO HAC VICE, Howard Law Group, Grand Rapids, MI.

 

JUDGES: LEONARD T. STRAND, UNITED STATES MAGISTRATE JUDGE.

 

OPINION BY: LEONARD T. STRAND

 

OPINION

 

ORDER ON DEFENDANT’S MOTION FOR SUMMARY JUDGMENT

 

1. INTRODUCTION

This case is before me on a motion (Doc. No. 16) for summary judgment filed by defendant Old Republic Insurance Company (Old Republic). Plaintiff Diana K. Stinton, individually and as administrator of the estate of Gene Allan Stinton, deceased (Ms. Stinton) has filed a resistance (Doc. No. 17) and Old Republic has filed a reply (Doc. No. 18). While Old Republic has requested oral argument, I find that the issues have been thoroughly briefed such that oral argument is not necessary and would serve only to delay these proceedings. See N.D. Ia. L.R. 7(c). The motion is fully submitted and ready for decision.

 

1. PROCEDURAL HISTORY

Ms. Stinton commenced this action by filing a petition [*2]  (Doc. No. 3) in the Iowa District Court for Plymouth County on February 6, 2015. In general, Ms. Stinton alleges that Old Republic is obligated under a policy of insurance to pay underinsured motorist (UIM) benefits as a result of the death of her husband, Gene Allan Stinton (Mr. Stinton). Doc. No. 3 at 4-6. Old Republic filed a notice (Doc. No. 2) of removal to this court on March 13, 2015, invoking this court’s diversity jurisdiction pursuant to 28 U.S.C. § 1332. Old Republic then filed an answer in which it denied Ms. Stinton’s claim and raised certain defenses.

Upon the unanimous consent of the parties, this case was assigned to me on June 16, 2015, pursuant to 28 U.S.C. § 636(c)(3). Doc. No. 13. Trial is scheduled to begin April 18, 2016. Doc. No. 14. On December 18, 2015, Old Republic filed its motion for summary judgment.

 

III. RELEVANT FACTS

The following facts are undisputed:1

 

1   Certain facts are deemed undisputed by operation of Local Rule 56(b), which provides as follows in relevant part:

 

A response to an individual statement of material fact that is not expressly admitted must be supported by references to those specific pages, paragraphs, or parts of the pleadings, depositions, answers to interrogatories, admissions, exhibits, and [*3]  affidavits that support the resisting party’s refusal to admit the statement, with citations to the appendix containing that part of the record. The failure to respond, with appropriate citations to the appendix, to an individual statement of material fact constitutes an admission of that fact.

 

 

N.D. Ia. L.R. 56(b). In resisting Old Republic’s motion for summary judgment, Ms. Stinton filed a response to Old Republic’s statement of undisputed facts in which she purported to deny the facts set forth in paragraphs 13, 16, 17, 19, 23 and 24 of Old Republic’s statement. See Doc. No. 17-1 at 3-4. However, Ms. Stinton did not provide citations to the record in support of her denials. As such, she is deemed to have admitted all such facts.

On or about September 12, 2013, Mr. Stinton, while employed by Archer Daniels Midland Alliance Nutrition Inc. (Alliance), was operating a grain truck when a semi-tractor and trailer owned by American Outlaw Transportation, Inc. (American Outlaw), and driven by Tom Laidlaw, ran a stop sign, striking and killing Mr. Stinton. As of the date of the accident, a policy of insurance issued by Artisan’s and Trucker’s Casualty Company insured the vehicle owned by American Outlaw. [*4]  That policy included bodily injury limits of $1,000,000. That amount has been paid to Mr. Stinton’s estate.

Mr. Stinton also had an underinsured policy of insurance through Farm Bureau with bodily limits of $100,000. That amount has been paid to Ms. Stinton. Ms. Stinton has also received workers’ compensation benefits through Alliance in the amount of approximately $85,000.

The Alliance grain truck that Mr. Stinton was operating at the time of his death was licensed in South Dakota but was principally garaged, maintained and loaded in Iowa. As of the date of the accident, Alliance was insured through Old Republic by policy number MWTB 21963 and MWTB 21604, with a policy period of July 1, 2013, to July 1, 2014 (the Policy). The declarations page shows “Archer Daniels Midland Co.” (ADM) as the Named Insured under the Policy. An endorsement to the Policy states that the Named Insured, as shown on the declarations page, is extended to include the Named Insured and any and all owned, controlled, associated, affiliated or subsidiary companies or corporations. Mr. Stinton’s employer, Alliance, is a subsidiary of ADM. Thus, Alliance is an additional Named Insured under the Policy.

On April 12, [*5]  2013, Michael Lusk, as Vice-President of Insurance and Risk Management of ADM, executed a form entitled “Rejection of Uninsured Motorists Coverage and/or Underinsured Motorists Coverage (Iowa).” Doc. No. 16-5 at 210. The form was furnished by Old Republic and was contained on a separate sheet of paper that included only the rejection and information directly related to the rejection. Mr. Lusk checked a box “agreeing that the Underinsured Motorists Coverage afforded in the policy is hereby rejected.” Id. Mr. Lusk knowingly rejected UIM coverage for all insureds under the policy. He was acting with the express authority of ADM when he executed the UIM selection form at issue.

The UIM form stated, as follows: “The individual signing this Rejection expressly represents and warrants that he/she is duly authorized to do so on behalf of the named insured and all additional insureds…” Doc. No. 16-5 at 210. Mr. Lusk was, in fact, duly authorized to represent the Named Insured as well as all additional insureds in signing the Rejection of Uninsured Motorists Coverage and/or Underinsured Motorists Coverage (Iowa).

Under Section II of the Policy (Liability), Mr. Stinton, as an employee of Alliance, [*6]  was an additional insured under the Policy. On the Policy’s declarations page, the “Limit” section for UIM coverage stated: “$ See UIM Forms”. Doc. No. 16-3 at 6. The Policy contained UIM coverage forms for each of the 50 states. Those forms varied according to each state’s respective laws. ADM rejected underinsured and uninsured motorist coverage in every state it was permitted to do so.

 

1. SUMMARY JUDGMENT STANDARDS

Any party may move for summary judgment regarding all or any part of the claims asserted in a case. Fed. R. Civ. P. 56(a). Summary judgment is appropriate when “the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue of material fact and that the moving party is entitled to a judgment as a matter of law.” Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986).

A material fact is one that “‘might affect the outcome of the suit under the governing law.'” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986). Thus, “the substantive law will identify which facts are material.” Id. Facts that are “critical” under the substantive law are material, while facts that are “irrelevant or unnecessary” are not. Id.

An issue of material fact is genuine if it has a real basis in the record, Hartnagel v. Norman, 953 F.2d 394, 395 (8th Cir. 1992) (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87, 106 S. Ct. 1348, 89 L. Ed. 2d 538 (1986)), or when “‘a reasonable [*7]  jury could return a verdict for the nonmoving party’ on the question,” Woods v. DaimlerChrysler Corp., 409 F.3d 984, 990 (8th Cir. 2005) (quoting Anderson, 477 U.S. at 248). Evidence that only provides “some metaphysical doubt as to the material facts,” Matsushita, 475 U.S. at 586, or evidence that is “merely colorable” or “not significantly probative,” Anderson, 477 U.S. at 249-50, does not make an issue of material fact genuine.

As such, a genuine issue of material fact requires “sufficient evidence supporting the claimed factual dispute” so as to “require a jury or judge to resolve the parties’ differing versions of the truth at trial.” Anderson, 477 U.S. at 248-49. The party moving for entry of summary judgment bears “the initial responsibility of informing the court of the basis for its motion and identifying those portions of the record which show a lack of a genuine issue.” Hartnagel, 953 F.2d at 395 (citing Celotex, 477 U.S. at 323). Once the moving party has met this burden, the nonmoving party must go beyond the pleadings and by depositions, affidavits, or otherwise, designate specific facts showing that there is a genuine issue for trial. Mosley v. City of Northwoods, 415 F.3d 908, 910 (8th Cir. 2005). The nonmovant must show an alleged issue of fact is genuine and material as it relates to the substantive law. If a party fails to make a sufficient showing of an essential element of a claim or defense with respect to which that party has the burden of [*8]  proof, then the opposing party is entitled to judgment as a matter of law. Celotex, 477 U.S. at 322.

In determining if a genuine issue of material fact is present, I must view the evidence in the light most favorable to the nonmoving party. Matsushita, 475 U.S. at 587-88. Further, I must give the nonmoving party the benefit of all reasonable inferences that can be drawn from the facts. Id. However, “because we view the facts in the light most favorable to the nonmoving party, we do not weigh the evidence or attempt to determine the credibility of the witnesses.” Kammueller v. Loomis, Fargo & Co., 383 F.3d 779, 784 (8th Cir. 2004). Instead, “the court’s function is to determine whether a dispute about a material fact is genuine.” Quick v. Donaldson Co., Inc., 90 F.3d 1372, 1376-77 (8th Cir. 1996).

 

1. ANALYSIS

In seeking the entry of summary judgment in its favor, Old Republic argues that UIM benefits are not payable under the Policy because ADM expressly rejected UIM coverage when it purchased the Policy. Old Republic contends that this rejection occurred in accordance with Iowa law. Old Republic also contends that even if UIM coverage was not effectively rejected, Iowa law provides that the coverage limits would be just $20,000, an amount far below what Mr. Stinton’s estate has already recovered. Finally, Old Republic argues that because the two contracting parties (Old [*9]  Republic and ADM) agree that the Policy does not provide UIM coverage, the court may not write such unintended coverage into the Policy.

Ms. Stinton argues that there are genuine issues of material fact as to whether ADM actually and effectively rejected UIM coverage. She further contends that if no rejection occurred, then UIM coverage exists with a limit of $10,000,000, which is the Policy’s general liability limit.2

 

2   In the “Factual Background” section of her brief, Ms. Stinton includes a discussion of the fact that the truck Mr. Stinton was driving at the time of the accident was licensed in South Dakota. Doc. No. 17-4 at 8-10. However, the “Argument” section of her brief includes no argument that South Dakota law applies, or that UIM benefits are owing under South Dakota law. Id. at 10-16. As such, I will analyze Ms. Stinton’s claim, and Old Republic’s motion, only under Iowa law.

 

1. Overview of Applicable Iowa Law

 

1. Insurance Contracts in General

The Iowa Supreme Court recently summarized Iowa law as follows:

 

Our rules governing the construction and interpretation of insurance policies are well-settled. “The cardinal principle … is that the intent of the parties at the time the policy was sold [*10]  must control.” LeMars Mut. Ins. Co. v. Joffer, 574 N.W.2d 303, 307 (Iowa 1998). Except in cases of ambiguity, we determine “the intent of the parties by looking at what the policy itself says.” Boelman, 826 N.W.2d at 501. If a term is not defined in the policy, we give the words their ordinary meaning. Id. “We will not strain the words or phrases of the policy in order to find liability that the policy did not intend and the insured did not purchase.” Id.

“[A] policy is ambiguous if the language is susceptible to two reasonable interpretations” when the contract is read as a whole. Id. “If the policy is ambiguous, we adopt the construction most favorable to the insured.” Id. at 502. “An insurance policy is not ambiguous, however, just because the parties disagree as to the meaning of its terms.” Id. Moreover, “‘[a]mbiguity is not present merely because the provision “could have been worded more clearly or precisely than it in fact was.”‘” Am. Family Mut. Ins. Co. v. Corrigan, 697 N.W.2d 108, 114 (Iowa 2005) (quoting Cairns v. Grinnell Mut. Reins. Co., 398 N.W.2d 821, 824 (Iowa 1987)). “If an insurance policy and its exclusions are clear, the court ‘will not “write a new contract of insurance”‘ for the parties.” Boelman, 826 N.W.2d at 502 (quoting Thomas v. Progressive Cas. Ins. Co., 749 N.W.2d 678, 682 (Iowa 2008)). We construe exclusions strictly against the insurer. Id. Nevertheless, “we must enforce unambiguous exclusions as written.” Bituminous Cas. Corp. v. Sand Livestock Sys., Inc., 728 N.W.2d 216, 222 (Iowa 2007).

 

 

Amish Connection, Inc. v. State Farm Fire and Cas. Co., 861 N.W.2d 230, 236 (Iowa 2015).

 

2. UIM Coverage

The Iowa Code includes the following provision:

 

 

516A.1 Coverage Included [*11]  In Every Liability Policy — Rejection By Insured.    No automobile liability or motor vehicle liability insurance policy insuring against liability for bodily injury or death arising out of the ownership, maintenance, or use of a motor vehicle shall be delivered or issued for delivery in this state with respect to any motor vehicle registered or principally garaged in this state, unless coverage is provided in such policy or supplemental thereto, for the protection of persons insured under such policy who are legally entitled to recover damages from the owner or operator of an uninsured motor vehicle or a hit-and-run motor vehicle or an underinsured motor vehicle because of bodily injury, sickness, or disease, including death resulting therefrom, caused by accident and arising out of the ownership, maintenance, or use of such uninsured or underinsured motor vehicle, or arising out of physical contact of such hit-and-run motor vehicle with the person insured or with a motor vehicle which the person insured is occupying at the time of the accident. Both the uninsured motor vehicle or hit-and-run motor vehicle coverage, and the underinsured motor vehicle coverage shall include limits for [*12]  bodily injury or death at least equal to those stated in section 321A.1, subsection 11. The form and provisions of such coverage shall be examined and approved by the commissioner of insurance.

However, the named insured may reject all of such coverage, or reject the uninsured motor vehicle (hit-and-run motor vehicle) coverage, or reject the underinsured motor vehicle coverage, by written rejections signed by the named insured. If rejection is made on a form or document furnished by an insurance company or insurance producer, it shall be on a separate sheet of paper which contains only the rejection and information directly related to it. Such coverage need not be provided in or supplemental to a renewal policy if the named insured has rejected the coverage in connection with a policy previously issued to the named insured by the same insurer.

 

 

Iowa Code § 516A.1. Uninsured or underinsured coverage is required only with regard to those who are protected by a policy’s liability coverage. Thomas v. Progressive Cas. Ins. Co., 749 N.W.2d 678, 686 (Iowa 2008). As the statute indicates, only the named insured may effectively reject such coverage. Preferred Risk Ins. Co. v. Cooper, 638 N.W.2d 717, 719-20 (Iowa 2002).

 

1. Did the Named Insured Reject UIM Coverage Under the Policy?

As noted above, Alliance was insured under the Policy on the date of the accident. The Policy’s [*13]  declarations page indicates that the Named Insured was ADM, along with “any and all owned, controlled, associated, affiliated or subsidiary companies or corporations.” Doc. No. 16-3 at 35. The record includes a form entitled “Rejection of Uninsured Motorists Coverage and/or Underinsured Motorists Coverage (Iowa)” (the Rejection). Doc. No. 16-5 at 210. As required by Section 516A.1, the Rejection was “a separate sheet of paper which contains only the rejection and information directly related to it.” Id. The Rejection indicates that both underinsured motorist coverage and uninsured motorist coverage were being rejected and contains a signature dated April 12, 2013. Id.

By affidavit, Mr. Lusk states that he was the Vice-President of Insurance and Risk Management for ADM at the relevant time and that he is the person who signed the Rejection. Doc. No. 16-3 at 3-4. He states that he was acting with ADM’s express authority, as well as with the authorization of all other named insureds, when he signed the form. Id. at 4-5. He further states that by signing the form, he “knowingly rejected UIM coverage for all insureds under the policy.” Id. at 4. Mr. Lusk explains that ADM rejected underinsured and uninsured coverage in [*14]  every state in which it was permitted to do so. Id.

The combination of the Rejection and Mr. Lusk’s testimony appears to establish beyond dispute that the named insureds under the Policy rejected UIM coverage in the manner provided by Iowa law. This is especially true in light of Ms. Stinton’s failure to comply with Local Rule 56(b), which operates as an admission of all facts set forth in Old Republic’s statement of undisputed facts. See Note 1, supra. Even without considering Local Rule 56(b), however, I find that Ms. Stinton has failed to raise a genuine issue of material fact as to whether ADM effectively rejected UIM coverage.

In resisting the entry of summary judgment, Ms. Stinton suggests that the Rejection may have been created after-the-fact to support Old Republic’s denial of her claim. See, e.g., Doc. No. 17-4 at 14 (“The admission by Mr. Farr coupled with the compelling circumstantial evidence surrounding the rejection of UIM coverage in Iowa raises substantial doubt as to the validity of the alleged declination of coverage form.”). That is, she appears to argue that reasonable jurors could find that Mr. Lusk conspired with others at ADM and Old Republic, after Mr. Stinton’s death, to create a back-dated [*15]  written rejection of UIM coverage. In other words, and while she does not say so quite so strongly, Ms. Stinton contends that Old Republic (and others) are perpetrating a fraud on her and the court. In making this argument, Ms. Stinton relies on certain actions and statements that occurred after the accident.

First, Ms. Stinton recites the history of efforts by W.E. Collins, an attorney representing her and Mr. Stinton’s estate, to obtain copies of relevant Policy materials from ADM. Those efforts commenced in October 2013. Ms. Stinton finds it suspicious that a copy of the Rejection was not provided to her until July 24, 2014, only after Mr. Collins wrote a letter to Old Republic demanding payment of $5 million in UIM benefits. Moreover, Ms. Stinton states:

 

ADM’s own Insurance and Risk Management Coordinator, Greg Farr, who presumably would have a say in the decision to elect or decline coverage, drug his feet when asked for confirmation of UIM coverage under the Old Republic Policy, and eventually flatly admitted that there were no rejections of Iowa UIM coverage.

 

 

Doc. No. 17-4 at 13.3 Ms. Stinton is referring to an email message Mr. Farr sent on December 19, 2013, in response to an [*16]  inquiry from Mr. Collins. Mr. Farr wrote:

In Iowa the UND4 policy is not required by the state as such ADM has not taken out coverage. The dec page that I sent you was for our national auto liability policy and if we have UND coverage in certain states there is a separate endorsement for that state providing coverage. There is no such endorsement in Iowa and we do not have UND coverage or any rejection letters. I hope that this helps to explain, but if I can provide additional information that will help please don’t hesitate to let me know.

 

 

Doc. No. 17-3 at 4. While this communication confirmed ADM’s position that it did not have UIM coverage in Iowa, Ms. Stinton finds significance in Farr’s statement that ADM had no “rejection letters.”

 

3   Mr. Farr has provided an affidavit in which he states that he was employed as a claims coordinator for ADM and that his primary role in this matter was to obtain reimbursement from American Outlaw. Doc. No. 18-1 at 27-28. He states that the determination of ADM’s insurance coverage was not within the scope of his job responsibilities. Id.

4   The parties appear to agree that “UND” is another abbreviation for underinsured motorist coverage.

In the context of [*17]  the email thread between Mr. Farr and Mr. Collins, it is quite possible that Mr. Farr intended to communicate that ADM did not have a copy of the Rejection in its possession. However, such a statement would not mean that the Rejection did not exist. Old Republic, the other party to the insurance contract, has produced the Rejection in this litigation and has provided sworn testimony that the Rejection was contained in its underwriting file. Doc. No. 16-5 at 208-10; Doc. No. 18-1 at 35. Even interpreting Mr. Farr’s comment as favorably to Ms. Stinton as possible, it is not an admission that ADM failed to reject UIM coverage in the manner required by Iowa law.

Ms. Stinton also finds significance in the fact the Rejection is not listed in various indices of Policy forms and notices. In particular, the Policy contains a “Policy Holder Notice Index,” which lists various state-specific documents, and a “Forms Index” that purports to list all forms made part of the Policy at the time of issuance. Doc. No. 16-3 at 11-34. Neither index includes the Rejection. Id.

Ms. Stinton cites no authority for the proposition that Old Republic was required to list the Rejection in either index, or that the [*18]  Rejection is invalid if not so listed. The Iowa statute contains no requirement that a written rejection of UIM coverage be identified in a policy index. See Iowa Code § 516A.1. Instead, Ms. Stinton’s argument appears to be that the failure to list the Rejection is evidence that the document did not exist when the Policy took effect. In other words, she argues that the jury can infer from the omissions that the Rejection is a fraudulent, back-dated document.

While Ms. Stinton is entitled to have all reasonable inferences drawn in her favor, I find that the summary judgment record does not come close to allowing such an inference. As noted above, Old Republic has produced the Rejection itself, along with sworn testimony supporting its authenticity. The various forms listed in the “Forms Index,” and attached to the Policy, are almost-uniformly identified as being endorsements that change the terms of the Policy. See, e.g., Doc. No. 16-3 at 70-211. The Rejection is not. Doc. 16-5 at 208-10. Absent authority indicating that Old Republic had a legal obligation to identify the Rejection in the Policy’s lists of notices and forms, I find that the lack of such identification falls short of permitting a reasonable [*19]  inference that the Rejection did not exist.

Ms. Stinton had a full opportunity to conduct discovery in this case. She has not come forward with evidence giving rise to a genuine issue of material fact as to whether ADM properly rejected UIM coverage as permitted by Iowa law. As such, Old Republic is entitled to judgment in its favor as a matter of law.5

 

5   Because I have found in Old Republic’s favor on this issue, I need not address its alternative arguments.

 

1. CONCLUSION

For the reasons set forth herein:

1. Defendant’s motion (Doc. No. 16) for summary judgment is granted.
2. Judgment shall enter in favor of defendant Old Republic Insurance Company and against plaintiff Diane K. Stinton, individually and as administrator of the estate of Gene Allan Stinton, deceased.
3. Trial, which is currently scheduled to begin April 18, 2016, is canceled.
4. Because this order disposes of all pending claims, this case is closed.

IT IS SO ORDERED.

DATED this 10th day of February, 2016.

/s/ Leonard T. Strand

LEONARD T. STRAND

UNITED STATES MAGISTRATE JUDGE

Kristen Brown; A.B., by next friend Kristen Brown; R.B., by next friend Kristen Brown Plaintiffs – Appellees v. Kenneth L. Davis, Jr. Defendant William Davis; William Davis Logging, Inc. Defendants – Appellants Appeal from United States District Court for the Eastern District of Missouri – St. Louis

 

No. 15-1009

 

UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT

 

2016 U.S. App. LEXIS 3102

 

 

February 23, 2016, Filed

 

NOTICE:

Decision text below is the first available text from the court; it has not been editorially reviewed by LexisNexis. Publisher’s editorial review, including Headnotes, Case Summary, Shepard’s analysis or any amendments will be added in accordance with LexisNexis editorial guidelines.

 

OPINION

[*1] Submitted: December 15, 2015

Filed: February 23, 2016

____________

Before MURPHY, BENTON, and KELLY, Circuit Judges.

____________

MURPHY, Circuit Judge.

Kyle Brown was killed on a bridge crossing the Mississippi River between

Missouri and Illinois when a large “log skidder” tractor fell off a truck onto his car.

The truck hauling the log skidder was being driven by Kenneth Davis, Jr. (Ken) for his uncle William Davis and William Davis Logging, Inc. (WDL). Brown’s wife Kristen brought this wrongful death action against Ken Davis, William Davis, and WDL on behalf of herself and her two children. The complaint asserted negligence based on Ken’s driving and William’s failure to block oncoming traffic. After the case was removed to federal court,1it was tried before a jury which returned a $3 million verdict for the Browns. William Davis and WDL appeal. We affirm.

I.

On December 14, 2011 William Davis, the president of WDL, and his nephew Ken Davis, an independent contractor, set out from Atlas, Illinois to deliver a John Deere 540B log skidder owned by WDL to a buyer in Eolia, Missouri. In order to reach Eolia, the Davises planned to travel west across the Mississippi on the Champ Clark Bridge. That [*2]  bridge is 20 feet wide and has two lanes. Since the log skidder was 10 feet wide, it would have had to cross the centerline and encroach on the eastbound lane of the bridge.

At trial Sheriff Paul Petty of Pike County, Illinois testified about a 20 year local practice for wide loads crossing the bridge. According to the sheriff, the practice was for a driver with a wide load to call a law enforcement agent and request that all oncoming bridge traffic be stopped. Although Ken was aware of this practice, he preferred to “close” the bridge himself by sending another driver across first to block the eastbound lane. Ken testified that he had hauled loads across the bridge for William “thousands” of times. Often William was with him and would cross first in his pickup truck to close the lane until Ken and his load were safely across to the west. Ken stated that William had closed the bridge for him hundreds of times.

1The Honorable Audrey G. Fleissig, United States District Judge for the Eastern District of Missouri, presiding.

William also testified that he had blocked traffic on the bridge himself and sometimes had called law enforcement to close it.

At the west end of the bridge where plaintiffs [*3]  allege William Davis was supposed to block traffic there is a four way stop at the first intersection. There are two gas stations on the eastern corners of that intersection, and between them and the west end of the bridge is a motel. A driver heading east from either gas station or the motel may turn directly onto the road which leads to the bridge and avoid the four way stop at the intersection. Because of these access points on the west side of the bridge, William would be ideally positioned close enough to the bridge to block oncoming vehicles either from the intersection or from the three adjacent properties. The day before the accident, Ken loaded the log skidder onto a flatbed trailer for William who owned both the trailer and the truck.

The next morning the two met for breakfast at the Atlas Cafe, then went to Ken’s lot, checked the trailer, and set off westbound for Missouri. William went first in the pickup. Ken followed with the log skidder and slowed as he approached the east end of the bridge and drove onto the shoulder to call William to check on any traffic. After William assured Ken that “the bridge was clear” and hung up, Ken drove west. As Ken passed under the first [*4]  part of the bridge superstructure, he saw a car coming east over a rise in the center of the bridge. He “tried to move over because [it] was coming at [him] real quick,” but he “got over too far” and hit the bridge with the log skidder. On impact the skidder ripped loose from the trailer and struck the top of the oncoming car, killing its driver, Kyle Brown. The collision occurred on the Illinois side of the bridge about 500 feet east of its center.

Ken Davis admitted that his negligence had caused the accident resulting in Brown’s death so the key contested issue for the jury related to William’s actions on the Missouri side of the bridge. Both William and another witness, Richard Brummell, testified about William’s location, using an aerial photograph of the scene

to explain to the jury what happened. William testified that as he headed west over the bridge toward Missouri, Ken called and asked him “to look out for trucks.” William responded that “it’s all clear.” Then when William reached the Missouri side of the bridge, he stopped “a few car lengths” before the stop sign at the intersection ahead and “sat there for a few minutes” watching for oncoming traffic. William admitted at [*5]  trial that from that location he would “probably not” have been able to stop traffic entering onto the road from the motel parking lot or the two gas stations closer to the bridge.

When William saw Richard Brummell’s pickup truck approaching the Missouri intersection, he “told [Brummell] that Ken was coming across the bridge with a wide load.” Brummell then stopped and waited. While he was waiting at the intersection, William looked in his rearview mirror and “could see the super structure of [the] truck

. . . coming across the bridge.” Later, however, he stated that he could have been mistaken about whether he had in fact seen it. After he stopped Brummell, William said he “saw no traffic.” Apparently he believed Ken could safely proceed over the bridge at that point. William then crossed to the west side of the intersection to use the restroom in the Shell station. As he walked into the station, Ken called and said that there had been an accident.

Richard Brummell’s testimony was different in significant points. He explained that as he was driving east from Missouri to his farm in Illinois, he first saw William when they were both approaching the intersection at the west end of the [*6]  bridge. Brummell testified that instead of waiting at the intersection to block traffic, William had proceeded through the crossing “just like you do at a normal stop sign” and gone over to the Shell station. Brummell did not see William give any signal for him to wait and “didn’t see nobody stop anybody.” Brummell continued onto the bridge and came to the scene of the accident where he saw Ken standing next to his truck calling for help on his cell phone. At that point Brummell backed up to the Missouri end of

the bridge in order to block traffic coming from the two gas stations or the motel. Brummell did not see Kyle Brown’s car prior to the accident.

Kyle’s wife Kristen Brown filed a wrongful death action in state court which was subsequently removed to the United States District Court for the Eastern District of Missouri, see 28 U.S.C. §§ 1332(a), 1441(a). The case was tried to a jury which found in favor of Brown and her children. Damages of $3,000,000 were assessed against Ken, William, and WDL jointly and severally. After trial William and WDL filed a motion for judgment as a matter of law, claiming that there had been insufficient evidence to find William individually liable and that the WDL company was [*7]  entitled to judgment on the vicarious liability claims. See Fed. R. Civ. P. 50. The district court concluded that there was sufficient evidence for the jury to find that William Davis was negligent and liable for Kyle Brown’s death, and WDL also responsible for William’s negligence. William and WDL now appeal.

II.

Appellants contend that the district court erred by denying their motion for judgment as a matter of law because there was insufficient evidence that William was negligent. We review de novo the denial of such a motion. Conseco Fin. Servicing Corp. v. N. Am. Mortg. Co., 381 F.3d 811, 818 (8th Cir. 2004). We view the evidence “in the light most favorable to the verdict, giving the prevailing party the benefit of all reasonable inferences, and we will not judge the credibility of the witnesses or weigh the evidence.” Id. (citation omitted). We will not set aside the jury verdict “unless there is a complete absence of probative facts to support the verdict.” Id.

The collision which killed Kyle Brown occurred east of the boundary between Missouri and Illinois at the middle of the main channel of the Mississippi River. See 3 Stat. 545 (1820) (delineating the boundary). William’s actions on the west end of

the bridge occurred in Missouri. The district court had jurisdiction based on the diversity of the [*8]  parties and applied Missouri tort law under Missouri’s choice of law principles. See Am. Guar. & Liab. Ins. Co. v. U.S. Fid. & Guar. Co., 668 F.3d 991, 996 (8th Cir. 2012). No party has challenged that determination, and we also apply Missouri tort law. See Lackawanna Chapter of the Ry. & Locomotive Historical Soc’y, Inc. v. St. Louis Cty., 497 F.3d 832, 835 (8th Cir. 2007). See generally Gerhard v. Terminal R.R. Ass’n of St. Louis, 299 S.W.2d 866, 869-70 (Mo. 1957) (per curiam) (discussing Missouri’s concurrent jurisdiction “on the river Mississippi” as applied to cases involving bridges).

To prove a claim of negligence under Missouri law, “a plaintiff must establish that the defendant had a duty to protect the plaintiff from injury, the defendant failed to perform that duty, and the defendant’s failure proximately caused injury to the plaintiff.” Lesch v. United States, 612 F.3d 975, 981 (8th Cir. 2010) (citing Lopez v. Three Rivers Elec. Co-op., 26 S.W.3d 151, 155 (Mo. 2000)).

A.

Appellants first argue that the Browns did not present sufficient evidence to establish that William had a legal duty. “The duty to exercise care may be a duty imposed by common law under the circumstances of a given case.” Hoover’s Dairy, Inc. v. Mid-Am. Dairymen, Inc./Special Prods., Inc., 700 S.W.2d 426, 431 (Mo. 1985) (quoting Zuber v. Clarkson Constr. Co., 251 S.W.2d 52, 55 (Mo. 1952)). The extent of a duty “is generally measured by ‘whether or not a reasonably prudent person would have anticipated danger and provided against it.'” Id. (quoting Scheibel v. Hillis, 531 S.W.2d 285, 288 (Mo. 1976)). The “paramount factor” [*9]  in determining whether a duty exists is the foreseeability that some injury might result. Id. Whether the defendant “should have foreseen a risk in a given set of circumstances” depends on whether there was “some probability or likelihood of harm sufficiently serious that ordinary persons would take precautions to avoid it.” Lopez, 26 S.W.3d at 156.

There was ample evidence in the record for the jury to find that William should have foreseen the risks of transporting the log skidder across the bridge without first stopping traffic and that ordinary persons would have taken some precautions. An ordinary person would know that truckers must take special measures when hauling wide loads, especially on narrow roads. It would have appeared to a reasonably prudent person that the 10 foot wide log skidder required both of the two lanes in order to pass safely across the narrow Champ Clark Bridge. Given the risk of a collision, an ordinary reasonable person would have either called law enforcement to close the bridge from other traffic or blocked it himself. In fact, the normal practice for William and Ken was to close the bridge before crossing with a wide load. On this record, moreover, the evidence indicated that [*10]  William directed each stage of the move and his role was to stop traffic during the bridge crossing and inform Ken once the bridge was clear. The record was sufficient to prove that William had a duty to take precautions against the risks involved in transporting the log skidder over the bridge.

Appellants argue however that William had no legal duty because he did not “gratuitously and voluntarily undertake” a duty to Kyle Brown. They cite the Restatement (Second) of Torts § 323 which imposes liability on a person “who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of the other’s person or things.” See Trader v. Blanz, 937 S.W.2d 325, 328 (Mo. Ct. App. 1996). Section 323 of the Restatement is not applicable to this case, however. The jury found that William agreed to “participate in the process of transporting the log skidder over the Champ Clark bridge,” that he failed to stop oncoming traffic or to properly advise Ken of oncoming traffic, and that he was thereby negligent. In this case, William’s legal duty arose because a reasonably prudent person would have anticipated danger under

the circumstances and provided against it, Hoover’s Dairy, Inc., 700 S.W.2d at 431 (Mo. 1985), not because he was “render[ing] services” to Kyle Brown.

The district court used the language [*11]  of a liability element under section 323 in one of its instructions, asking the jury to determine whether William’s negligence “increased the risk of harm.” See Restatement (Second) of Torts § 323 (1965). This was not however a “gratuitous undertaking” case. The district court added that element “to accommodate a belief by [William] that this would be some action that he is undertaking voluntarily,” but it explained that the jury could find William liable even if he “was not performing in a gratuitous manner.” Appellants’ objections to the jury instructions were denied, and the jury was never asked to determine whether William undertook to “render services” to Kyle Brown. The district court correctly instructed on general negligence principles, and there was sufficient evidence for the jury to find that William had a legal duty to take appropriate precautions.

B.

Appellants next argue that there was insufficient evidence for the jury to find that William breached his duty of care. The district court properly instructed the jury to determine whether William failed to use “the degree of care that an ordinarily careful person would use under the same or similar circumstances.” See Lopez, 26 S.W.3d at 158. There was ample evidence to support [*12]  the jury’s finding that William failed to use ordinary care. Sheriff Petty’s testimony showed that closing the bridge was an ordinary practice in the community. See Wright v. Chicago, Burlington & Quincy R.R. Co., 392 S.W.2d 401, 405 (Mo. 1965) (discussing the relevance of evidence of custom in determining what an ordinarily prudent person would do under the circumstances). William knew about the crossing procedure because on prior occasions he had called law enforcement to close the bridge or blocked the bridge himself. Ken testified that William had blocked the bridge hundreds of times when

WDL was transporting wide loads. Brummell’s testimony, viewed in the light most favorable to the verdict, showed that on this record William did not warn others to stop. Instead of blocking traffic, William went to the Shell station. William testified that he called Ken and told him the bridge was “all clear” although he did not know in fact if it was.

Appellants point to William’s testimony about what he agreed to do the day of the bridge crossing, but the jury apparently believed Brummell’s version of the facts, and we cannot reweigh the evidence or the jury’s credibility findings. Conseco Fin. Servicing Corp., 381 F.3d at 818. Moreover, [*13]  William’s own testimony showed that even if he did in fact stop and wait, he did so in a position that would not have prevented cars leaving the motel from turning on to the bridge. He therefore was not in a position to block traffic adequately. “Maybe I was a little too far forward,” William admitted. We conclude that the evidence of his failure to stop traffic and of his misleading signal to Ken was sufficient for the jury to find that William failed to exercise ordinary care.

C.

Appellants also argue that William’s actions were not the proximate cause of Kyle Brown’s death. The general test for proximate cause “is whether an injury is the natural and probable consequence of the defendant’s negligence.” Stanley v. City of Independence, 995 S.W.2d 485, 488 (Mo. 1999). Proximate cause “inquires into the scope of foreseeable risk created by the defendant’s act or omission.” Nail v. Husch Blackwell Sanders, LLP, 436 S.W.3d 556, 563 (Mo. 2014). In this context, “foreseeability refers to whether a defendant could have anticipated a particular chain of events that resulted in injury or the scope of the risk that the defendant should have foreseen.” Lopez, 26 S.W.3d at 156. The defendant need not have anticipated the “exact manner” in which a particular injury would occur. Callahan v. Cardinal

Glennon Hosp., 863 S.W.2d 852, 865 (Mo. 1993) (quoting Tharp v. Monsees, 327 S.W.2d 889, 894 (Mo. 1959)). Rather, the plaintiff must prove that the defendant “could [*14]  foresee the person who would be injured” and that he “knew or ought to have known that there was an appreciable chance some injury would result.” Id. (quoting Tharp, 327 S.W.2d at 894).

Viewed in the light most favorable to the verdict, the evidence was sufficient for the jury to find that William’s actions were the proximate cause of the accident. Had William blocked traffic from entering the bridge, as an ordinarily careful person would have done, Kyle Brown’s car would not have been on the bridge at the same time as the truck carrying the log skidder. William knew that any person driving onto the bridge might be at risk and should have foreseen the risk of a collision.

Appellants nonetheless assert that Ken’s negligent driving on the bridge was the sole proximate cause of the accident. When two or more persons commit successive acts of negligence, the first person’s negligence is not the proximate cause of the injury when there is an “efficient, intervening cause.” Krause v. U.S. Truck Co., 787 S.W.2d 708, 710 (Mo. 1990). “If some injury is reasonably to be anticipated or is reasonably probable as a result of the defendant’s act of negligence, then the added [negligent] act of a third person . . . does not break the chain of causation and defendant is liable; in [*15]  such event the act of the third person is mere concurring negligence.” Dickerson v. St. Louis Pub. Serv. Co., 286 S.W.2d 820, 824 (Mo. 1956). Here, Ken’s negligence did not “interrupt[] the chain of events” set in place by William’s negligence. See id. Ken’s driving error occurred after he was surprised to see another vehicle on the bridge after William had told him that the bridge was clear. The entire sequence of events was set in motion by William’s failure to stop Kyle Brown’s car from driving onto the bridge, and the problem was exacerbated by the negligent warning he gave to Ken.

We conclude that there was sufficient evidence to support the jury’s verdict that William Davis acted negligently and caused the death of Kyle Brown.

III.

Appellants’ final contention is that the district court erred by denying their motion for a new trial based upon what they allege was an improper comment in closing argument. When reviewing the denial of a motion for a new trial under Fed. R. Civ. P. 59(a), we give great deference to the district court’s ruling and will not reverse in the absence of a clear abuse of discretion. Bass v. Gen. Motors Corp., 150 F.3d 842, 845 (8th Cir. 1998). “The key question is whether a new trial should have been granted to avoid a miscarriage of justice.” Id. (quoting McKnight v. Johnson Controls, Inc., 36 F.3d 1396, 1400 (8th Cir. 1994)).

Appellants claim that they were biased by the Browns’ [*16]  attorney’s rebuttal statement that the defendants had agreed that although the Brown family had sustained damages of $700,000, “I think Kyle was worth more than that.” After appellants moved to strike, the district court told the jury to disregard the comment. Then appellants moved for a mistrial which was denied. Appellants renewed their argument that the comment was prejudicial in their post verdict motion for a new trial.

The propriety of a statement in closing argument is a procedural question which we review under federal law. Sylla-Sawdon v. Uniroyal Goodrich Tire Co., 47 F.3d 277, 285 (8th Cir. 1995). District courts have considerable discretion to control closing arguments, and we will not reverse unless counsel has made statements that were “plainly unwarranted and clearly injurious.” Id. (quoting Vanskike v. Union Pac. R.R., 725 F.2d 1146, 1149 (8th Cir. 1984)). The Browns asked for a verdict of $8.5 million. Counsel for Ken Davis stated that the evidence

showed $700,000 of damages and told the jury, “So, give them $700,000.” Counsel for William and WDL said he agreed with that calculation. Those statements opened the door for the allegedly prejudicial statement by the counsel for the Browns. See Crouch v. Teledyne Continental Motors, Inc., 511 F. App’x 822, 824 (11th Cir. 2013) (per curiam) (concluding that defendant’s comments in opening and closing arguments were not reversible error where plaintiffs opened [*17]  the door to the allegedly improper references). Moreover, the statement at issue was not unwarranted given the context, nor was it clearly injurious since the court instructed the jurors to disregard it. We conclude that the district court did not abuse its discretion in denying appellants’ motion for a new trial.

IV.

For these reasons we affirm the judgment of the district court.

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