                  United States Court of Appeals
                             For the Eighth Circuit
                         ___________________________

                                 No. 17-3716
                         ___________________________

                       Roger D. Cottrell; Teresa M. Cottrell

                       lllllllllllllllllllllPlaintiffs - Appellants

                                           v.

                American Family Mutual Insurance Company, S.I.

                        lllllllllllllllllllllDefendant - Appellee
                                       ____________

                    Appeal from United States District Court
                  for the Eastern District of Missouri - Hannibal
                                  ____________

                            Submitted: January 16, 2019
                               Filed: July 18, 2019
                                  ____________

Before SMITH, Chief Judge, COLLOTON and ERICKSON, Circuit Judges.
                              ____________

SMITH, Chief Judge.

       Roger Cottrell appeals the district court’s grant of summary judgment in favor
of American Family Mutual Insurance Co., S.I., (“American Family”) determining
that American Family did not owe uninsured motorist coverage to Cottrell after he
was involved in a car crash with Mason Baumgarte. The district court concluded that
Baumgarte’s actions were the sole proximate cause of the accident. Cottrell asserts
that the district court erred. He argues that disputed issues of material fact made
summary judgment inappropriate. He contends that an unidentified third party on the
road at the time of the crash was a proximate cause of the accident. If Cottrell is
correct, his claim against American Family for benefits under the uninsured motorist
coverage provision of his policy should proceed. In its summary judgment order, the
district court determined that Baumgarte was both the actual and proximate cause of
the accident, regardless of the third car’s action. We reverse because material facts
remain disputed as to causation, making summary judgment inappropriate.

                                   I. Background
       Several cars traveling on a divided highway met at an intersection of the
highway and an access road. Two of them collided. The highway had two northbound
lanes divided by a median from two southbound lanes. An access road intersected
with the highway and cut straight across at a perpendicular angle to the main highway
traffic. Cottrell was northbound, driving at least the speed limit—65 miles-per-
hour—but perhaps as fast as 75 miles-per-hour. As Cottrell approached the access
road crossing, Baumgarte was stopped on the access road on Cottrell’s right-hand side
preparing to cross the highway. Baumgarte intended to cross over the two northbound
lanes on the access road, onto the median, and then enter southbound traffic. Facing
Baumgarte on the access road, stopped in the median, was a brown car apparently
preparing to enter northbound traffic.

      Baumgarte saw the driver of the brown car wave to him in a manner that
Baumgarte interpreted as permission to cross the highway before the brown car driver
would complete his turn into northbound traffic. Baumgarte also saw Cottrell
approaching the intersection. Baumgarte believed he “had enough distance to where
[Cottrell] wouldn’t have been a problem” and that he “could have got across [the
northbound lanes] safely.” Mem. in Opp’n to Mot. for Summ. J., Ex. A, Baumgarte
Dep. at 20, Cottrell v. Am. Family Mut. Ins. Co., S.I., No. 2:17-cv-00012 (E.D. Mo.
Aug. 28, 2017); ECF No. 29-1. After double-checking traffic, Baumgarte began across
the northbound lanes towards the median. As he crossed the highway, the brown car

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pulled into the left northbound lane, momentarily blocking Baumgarte’s passage,
causing Baumgarte to either slow down or completely stop—right in front of Cottrell.
Cottrell T-boned Baumgarte. The brown car drove away in the northbound lane, and
its driver remains unidentified.

       When interviewed about the accident, Cottrell stated that he saw Baumgarte
before he pulled out into the intersection. In response to a question about whether he
could “slam on [the] brakes, swerve, [or] do anything like that” to avoid the collision
after Baumgarte pulled onto the highway, Cottrell said “[t]here was no time.” Mot. for
Summ. J., Ex. C at 590–91, Cottrell v. Am. Family Mut. Ins. Co., S.I., No. 2:17-cv-
00012 (E.D. Mo. July 28, 2017), ECF No. 21-3. Another driver, Silvia Louise
Rousan-Elliott, saw the accident. When interviewed by police at the scene, Rousan-
Elliott said that the brown car “led to the collision.” Mem. in Opp’n to Mot. for
Summ. J., Ex. E, Rousan-Elliott Dep. at 10, Cottrell v. Am. Family Mut. Ins. Co., S.I.,
No. 2:17-cv-00012 (E.D. Mo. Aug. 28, 2017), ECF No. 29-6.

        Cottrell filed a claim with American Family seeking compensatory damages for
bodily injury under his policy’s uninsured motorist provision. American Family
denied the claim after Baumgarte’s insurance assessed Baumgarte 100 percent of the
liability for the accident and agreed to pay Cottrell’s property damage. This lawsuit
followed.

        In its summary judgment decision, the district court noted Cottrell’s theory for
recovery for an uninsured motorist incident is contractual but depends upon the tort
liability principle of proximate cause. Under Missouri law, courts, not juries determine
proximate cause in the absence of a material fact dispute. See Townsend v. E. Chem.
Waste Sys., 234 S.W.3d 452, 466 (Mo. Ct. App. 2007). Finding no genuine issues of
material fact, the district court, relying on Horton v. Swift & Co., 415 S.W.2d 801
(Mo. 1967), determined that Baumgarte proximately caused the accident by entering
the intersection in front of Cottrell. The district court concluded that Baumgarte lacked

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time to safely cross the highway ahead of Cottrell. Because the court concluded
Baumgarte was the actual and proximate cause of the accident, Cottrell’s assertion that
the brown car had a role in the collision failed. Consequently, his claim for uninsured
motorist coverage from American Family also failed. Cottrell now appeals.

                                     II. Discussion
       We review a district court’s grant of summary judgment de novo. Torgerson v.
City of Rochester, 643 F.3d 1031, 1042 (8th Cir. 2011) (en banc). “Summary
judgment is proper ‘if the pleadings, the discovery and disclosure materials on file,
and any affidavits show that there is no genuine issue as to any material fact and that
the movant is entitled to judgment as a matter of law.’” Id. (quoting Fed. R. Civ. P.
56(c)(2)). We view facts in the light most favorable to the nonmoving party, and we
make no determinations of credibility; nor do we weigh the evidence or draw
inferences, as those functions belong to the jury. Id. The question before us is whether
the record, when viewed in the light most favorable to Cottrell, shows that there is no
genuine issue as to any material fact and that American Family is entitled to judgment
as a matter of law. See Fed. R. Civ. P. 56(c)(2); Celotex Corp. v. Catrett, 477 U.S.
317, 322–23 (1986).

        We determine materiality of facts based on the substantive law governing an
underlying claim. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Facts
that, if altered, affect the outcome of a lawsuit under applicable substantive law, are
material. Id. A material fact dispute is “genuine” if each party has supplied some
evidence that is sufficient for a reasonable jury to return a verdict for the nonmoving
party. Id. In this case, facts affecting determination of the proximate cause of this car
crash are material.

       Under American Family’s insurance contract, a policy holder must establish
that an uninsured motorist was liable in tort law to the policy holder in order for
uninsured motorist coverage to apply. The pertinent question is whether the brown

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car’s actions were a proximate cause of Cottrell’s wreck with Baumgarte. “The
practical test of proximate cause is whether the negligence is an efficient cause which
sets in motion the chain of circumstances leading to the plaintiff’s injuries or
damages.” Buchholz v. Mosby-Year Book, Inc., 969 S.W.2d 860, 861 (Mo. Ct. App.
1998) (internal quotation omitted). If the chain is unbroken, and the car crash was the
“reasonable and probable consequence of the act or omission of [the negligent
party]”—i.e., the brown car—then that act was the proximate cause of the tort. Payne
v. City of St. Joseph, 135 S.W.3d 444, 451 (Mo. Ct. App. 2004) (internal quotation
omitted).

       In some cases, however, a second negligent act breaks the chain of causation,
relieving the originally negligent actor of liability. “When two or more individuals
commit consecutive acts of negligence closely related in time, there is a question as
to whether the initial act of negligence was the proximate cause or whether an
efficient, intervening cause exists.” Buchholz, 969 S.W.2d at 862. The intervening act
“must so interrupt the chain of events that it becomes the responsible, direct,
proximate and immediate cause of the injury.” Id. The legal effect of this type of
superseding event “severs the connection between the original actor’s conduct and the
plaintiff’s injury as a matter of law.” Id. Intervening acts must be so separate that they
are not foreseeable consequences of an original act of negligence. Id.

       The district court determined that even if the brown car’s gesture to Baumgarte
to enter the roadway was negligent, Baumgarte’s subsequent act of entering the
highway was an intervening act that severed the brown car’s liability and became the
sole cause of injury. The district court relied on Horton. In Horton, a taxi driver
waved for a pedestrian “to come on” across traffic, to get in the taxi. 415 S.W.2d at
802. As the pedestrian was getting in the taxi, a truck driver struck and injured the
pedestrian. Id. The pedestrian sued the taxi driver for negligence in waving her over,
but the Missouri Supreme Court found that the proximate cause of the injury was “her
act in opening the door so close to the truck and the movement of the truck at that

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time.” Id. at 803. Horton, however, is factually distinguishable. The brown car driver
did more than make a hand gesture. The driver also entered the flow of traffic in front
of Baumgarte. So even if Baumgarte’s intervening act severed any liability of the
brown car for the initial hand gesture, there is a question whether the brown car’s
subsequent act of entering the flow of traffic was an act of concurring or contributing
negligence that gives Cottrell a legal entitlement to recover from the uninsured
motorist.

       On summary judgment, the district court is not to weigh evidence or draw
inferences. The material facts must be undisputed. On this record, material facts
remain unresolved. Specifically, a question of fact exists on whether Baumgarte’s
entry into the highway, alone, caused the accident or whether the brown car’s entry
ahead of Baumgarte caused him to stop, making the accident unavoidable. A fact
finder should resolve whether Baumgarte could have made it across the intersection
but for the brown car cutting him off, or whether Baumgarte pulled out so close to
Cottrell that an accident was certain despite the brown car’s presence. These questions
are not settled by the record taken in the light most favorable to Cottrell.

       The district court’s analysis seemed to credit Cottrell’s statement that
Baumgarte entered the highway too suddenly for Cottrell to evade a collision. But,
both Baumgarte’s and Rousan-Elliott’s testimony support a potential finding that
Baumgarte had time to safely cross the road and that the brown car caused the
accident by pulling out and blocking Baumgarte’s path. Viewing the record in the
light most favorable to Cottrell, a reasonable jury could credit Baumgarte’s testimony
that he had enough time to safely cross the highway. The brown car then,
unexpectedly, cut Baumgarte off by proceeding into the northbound traffic, after
waving him on, which forced Baumgarte to stop. These facts are disputed and
material.




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                                     III. Conclusion
        Material questions of fact remain that could affect the proximate cause analysis
in this case. We therefore reverse the district court’s grant of summary judgment, and
we remand for further proceedings. We decline to address Cottrell’s argument for
vexatious refusal against American Family because that analysis is bound up in the
same unresolved questions of fact that make summary judgment inappropriate.
                        ______________________________




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