September 13, 2021 at 11:25 a.m.
Two years later, Liebscher testifies about fatal hit-and-run
Trial ends without a ruling; additional briefs to be filed
Two years later, Liebscher testifies about fatal hit-and-run
By Jamie Taylor and Heather Schaefer-
The lawsuit centers on a single question - did Jeffrey Liebscher have umbrella insurance coverage through Rural Mutual Insurance Company when he and Holtslander collided late in the evening of Aug. 28, 2019.
Rural Mutual initiated the civil case in January 2020, seeking a declaratory judgment that it has fulfilled its obligations to Liebscher with respect to the collision that resulted in Holtslander's death.
Liebscher, 55, was sentenced to three years in prison on a felony charge of hit-and-run involving death in connection with Holtslander's death. However, he was paroled on April 23, just under 9 months after receiving his sentence, after completing the state's Earned Release Program.
According to his criminal defense attorney Gary Cirilli, Liebscher was turning into his driveway at approximately 10:20 p.m. Aug. 28, 2019 when he struck Holtslander. Cirilli indicated Liebscher misjudged what he was seeing, mistaking the light on Holtslander's motorcycle for a flashlight being held by a pedestrian.
While Liebscher admitted to drinking in the hours preceding the collision, the question of whether he was over the .08 legal limit will never be answered as he left the scene and avoided police for approximately 11 hours, making it impossible to determine his blood alcohol level at the time of the accident.
According to court records, Rural Mutual paid out to the family of Sean Holtslander the limits of Liebscher's personal auto policy with the company and believes it has "no further duty to defend and indemnify regarding that matter."
The company alleges it is not required to provide Liebscher with coverage under a personal umbrella policy because it contends the policy was written after the accident occurred and Liebscher knew of the fatal accident at the time the coverage was written.
Legal counsel for Liebscher dispute this contention, arguing that an agent for Rural Mutual orally bound a contract for an umbrella policy hours before the accident occurred.
Following depositions and discovery, the company filed a motion for summary judgment on June 7 arguing that an insurance binder must be a "written instrument" and that the underwriting process was not completed in Mr. Liebscher's case until well after the fatal crash took place.
Liebscher's attorney offered a rebuttal.
"Evidence at trial will document the fact that Jeffrey Liebscher not only sought umbrella coverage from Rural Mutual on August 28th, 2019, and in fact believed that he had secured it, but that he also sought coverage or 'window shopped' umbrella coverage (with another insurance carrier)," counsel for Liebscher wrote in a statement in opposition to the motion for summary judgment.
Waiting in the wings, pending the resolution of the insurance coverage issue, is the Estate of Sean Holtslander which has filed a wrongful death lawsuit alleging that Liebscher was "negligent in the operation and use of his motor vehicle, and that such negligence was a direct and proximate cause of the collision ... and the injuries and damages sustained by Dorothy Holtslander (Sean's mother) and the Estate of Sean Holtslander."
The bench trial, before Oneida County circuit judge Patrick O'Melia, began Aug. 24, with Liebscher called as the first witness.
In the course of his testimony, Liebscher explained that he was looking for insurance coverage because he was planning to purchase a new vehicle the next day, Aug. 29, 2019. He also testified that he had little experience in dealing with insurance matters as his former wife handled those details when he was married.
He explained that he was at a job site with another contractor on Aug. 28 when the other contractor suggested Liebscher get an insurance quote from a Rural Mutual Insurance agent who is originally from Three Lakes.
Liebscher and the agent talked twice via cellphone on Aug. 28 for a total of about 9 minutes, according to the testimony. The agent, who was on vacation on Aug. 28 but took the calls anyway, asked Liebscher to call him back on Aug. 30 when he would be back in the office.
Rural Mutual attorney Nicole Marklein asked Liebscher if he received a written quote for insurance from the Rural Mutual agent at any time prior to the Aug. 28 accident.
"I don't know if I did or not," Liebscher answered. "I don't know what the dates were when these were sent. I know the agent talked to a secretary or something and they sent quotes. I do not remember the exact date."
Marklein also questioned Liebscher as to whether he told the Rural agent that he had insurance coverage in place through another company until the end of August.
"And you told him you had current insurance through the end of August?" she asked.
"I don't know that we talked about the current (policy), I don't recall that," Liebscher said.
When pressed, he maintained he didn't discuss any current policy with the Rural agent, but did recall telling him about the quote he had received from the other insurance company and "asked if he could do something better."
When Marklein asked if he said anything else to the agent in the initial phone call, Liebscher replied "just that I wanted a bundle with everything."
"I know we talked about the umbrella (coverage). I talked about wiring money to him, he told me I didn't need to do that, that we were verbally bound," Liebscher testified.
"He told me to just send a check, that everything was verbally bound and I didn't have to worry about it that day," he added.
About 30 minutes into his testimony, Liebscher was questioned about his actions immediately following the accident. He confirmed that his pickup collided with Holtslander's motorcycle sometime between 10:15 and 10:30 p.m. on Aug. 28, 2019.
"And immediately after the collision, you got out of your truck?"
"Correct," he replied.
"And you went over and you saw Mr. Holtslander in the road?"
"Correct."
"And it was obvious to you that he was deceased?"
"Correct."
"And you didn't call 9-1-1, did you?" Marklein asked.
"No."
"Instead, you drove your truck into the woods to hide it?"
"Correct," Liebscher said.
Marklein then asked "do you consider yourself a truthful person?" and Liebscher answered "yes."
Later, Liebscher insisted he had no intention of hiding his truck.
"You said I drove the truck to hide it," he said. "I had no intent of hiding it."
"I have no idea where my head was," he said later, noting that if he were trying to hide the truck he wouldn't have left it in the middle of a field.
"But I did run away from the accident, I will say yes to that," he added.
The two then discussed how Liebscher contacted his brother for a ride to the residence in Three Lakes where he was working on a contracting job. He admitted "it was possible" that while texting with his brother, he "neglected to mention" the accident.
He also admitted his cellphone was in airplane mode but claimed that he didn't know how to turn that feature on or off.
Liebscher said that sometime on the morning of Aug. 29, 2019, he contacted the sheriff's department and agreed to speak to detectives.
"And you told the officers a story about your whereabouts the night before?" Marklein asked. "And you denied knowing about the accident involving Mr. Holtslander, didn't you?"
"Correct," Liebscher replied.
"And you agree, that was a lie?" Marklein pushed.
"Correct," he agreed.
"You denied being involved in the accident, correct?"
"Correct."
"And that was also a lie?"
"Correct."
Marklein asked him if at some point on Aug. 29, "you eventually came clean and told them what really happened." Liebscher admitted that was also "correct." She then asked him if this was because he was afraid detectives would seize his phone and he would be charged with obstruction of justice.
"I told the truth at some point because I couldn't lie anymore," Liebscher replied.
After Marklein walked Liebscher through what happened immediately after the accident, she turned her line of questioning to when he resumed his efforts to finalize his new insurance coverage with Rural Mutual. He agreed that he didn't have any communication with the Rural agent until Sept. 3, other than an initial six-page homeowner's insurance quote that was waiting in his email box sent on Aug. 29, that did not include umbrella coverage.
Liebscher said he doesn't have a clear recollection of his Sept. 3 calls to the agent's office.
"I think when I finally started talking to them again, I was looking for the, you know, the quotes and the binders and stuff," he said.
Marklein asked him if he thought he had insurance in place with Rural Mutual on Aug. 28, and he was following up with them on Sept. 3?
"Just so I had a record of it, because obviously you hear a lot of stories about insurance companies and how things can go," Liebscher said. "So I just wanted to be sure."
"So you didn't ask for a record of it until after the accident with Sean Holtslander, correct?" Marklein asked.
Liebscher answered in the affirmative and also admitted that he didn't report the accident during the Sept. 3 phone calls.
The question of when Liebscher mailed the check to the insurance company was the subject of considerable discussion while he was on the stand.
Under questioning by his own attorney, Tim Melms, Liebscher testified he believed he had secured umbrella insurance coverage that day.
"Jeff, do you believe that you had purchased home, auto and a personal umbrella policy on Aug. 28, 2019?" Melms asked.
"Yes," Liebscher replied.
Liebscher testified he wasn't sure of the whereabouts of the check he had written to the insurance company. He said he was eventually allowed to retrieve items from his truck, but the check was not in the vehicle.
"You don't know for sure when you mailed it?" Melms asked.
"That's correct," Liebscher replied.
Bank records showed Rural Mutual deposited the check on Sept. 8, according to the testimony.
The second witness was an assistant to the Rural agent.
The assistant testified that the agent sent her the information Liebscher gave him, and since the agent was on vacation, she used the information to generate an auto quote before starting on the more complicated homeowner's policy quote.
She testified that she immediately had problems with the VIN for the truck Liebscher owned, so she substituted a different car of the same brand to at least be able to get a quote started. She testified that this would not be an accurate premium quote, however.
The assistant also said she emailed the agent and requested he get the correct VIN from Liebscher.
She later noted that initially she had very little information on Liebscher's house other than its address and an estimate of its value. To properly underwrite the homeowner's policy, she needed photos of the house from all sides, along with photos and serial numbers from the boat and motor he also wanted covered under the policy, she said.
The assistant defined an umbrella policy as an extra insurance policy that protects the insured from catastrophic personal liability claims that exceed those of the homeowner and/or auto policies.
"At the time of Aug. 28, did Rural (Mutual) Insurance have an auto policy that also had an umbrella?" Marklein asked.
"Just an auto policy? No," the assistant replied.
"They had to also have a homeowner's policy to get an umbrella?"
"Correct," she replied.
After not hearing from Liebscher for several days, the assistant testified she was surprised when his check arrived in the mail on Sept. 6, 2019.
After conferring with the agent, they determined they needed more information to complete the homeowner's quote, she continued, explaining that they could not deposit the check until there was a policy number to credit it against.
She also testified she received an email from Liebscher's criminal attorney on Sept. 11, 2019 seeking an updated binder on Liebscher's insurance coverage.
"What is your understanding of who Mr. Cirilli was?" Marklein asked.
"I thought it was the attorney handling his divorce," the assistant replied.
The agent said she sent all the documents involving the quotes and policy to Cirilli on Sept. 12.
"Did Mr. Cirilli, at any point, tell you that Mr. Liebscher had been in an accident?" Marklien asked.
"No," she replied.
Under cross-examination by attorney Brett Eckstein, representing the Holtslander estate, the assistant admitted she was not personally involved in the phone calls between the agent and Liebscher and has no personal knowledge as to whether the agent offered umbrella coverage to Liebscher on Aug. 28.
Testimony from the Rural agent took up the bulk of the second day of trial.
The agent confirmed the information supplied by the assistant regarding the Liebscher transaction. He also detailed the information needed for insurance quotes to be generated.
He testified that the most important piece of information needed for an auto quote is the individual's driver's license number as with that they can obtain the person's moving violation record (MVR) in a matter of seconds. This information includes speeding tickets and accidents, which would cause the premium on the policy to go up, or Rural Mutual could refuse to cover them altogether if the MVR has serious or excessive entries.
When it comes to generating a quote for a homeowner's policy, the agent testified the process was more involved.
"Our homeowner's insurance includes a lot more than just homeowner's insurance. There could be ATVs, UTVs, boats, other things to insure," he said.
He said they would need photos of the residence and other structures to be insured, along with information such as year and make, serial numbers of boats and motors and any recreational vehicle an applicant would want covered.
"There is a whole process we have to go through to get a quote," he explained.
Marklein asked the agent if he had all of the information necessary to generate a homeowner's quote for Liebscher on Aug. 28, 2019.
"I did not," the agent replied, adding under further questioning that he never submitted Liebscher's information to underwriting for a homeowner's policy.
During the second phone call on Aug. 28, 2019, he said he gave Liebscher "raw numbers" as to what the premiums on homeowner's and auto coverage might look like.
"I did say we could add the umbrella (coverage)," the agent added.
"At any time on Aug. 28, 2019 did you tell Mr. Liebscher that he had homeowner's insurance in place with Rural Mutual?" Marklein asked.
"No," the agent replied.
"At any point on Aug. 28, 2019 did you tell Mr. Liebscher that homeowner's insurance was bound as of that date?"
"No."
"At any point on Aug. 28, 2019 did you tell Mr. Liebscher that he had umbrella coverage in place with Rural Mutual?"
"No."
"At any point during your conversation with Mr. Liebscher, any point on Aug. 28, 2019, did you tell him that umbrella coverage through Rural Mutual was bound?"
"No," the agent replied.
"Would there be any reason for you to backdate coverage before Aug. 31st without a specific request from Mr. Liebscher?" Marklein asked.
"No," the agent replied.
The agent testified that he received a text message from Liebscher on Sept. 4 with the correct VIN for the truck. Two days later he sent a message to Liebscher advising that he needed photos of his property and the boat and motor, he said, adding that he repeated that request in a phone call with Liebscher on Sept. 9 and received the photos on Sept. 11.
Liebscher never mentioned the accident during any of these communications, the agent said.
The agent testified he was contacted by the company's main office on Sept. 20, 2019, regarding a "rather large" accident claim on Liebscher's policy.
"I called Jeff Liebscher and asked if he had been in an accident and killed someone?" the agent testified. "Mr. Liebscher said yes, and I said why didn't you call the claim in or tell me about the claim at any time during the process? And he said my attorney told me not to tell anyone."
The agent then reiterated that Liebscher had led him to believe he had insurance coverage through another company through the end of August.
"And he said 'I thought I did,'" the agent recounted.
He told Marklein he was "very upset" with Liebscher.
"I felt like we had been lied to for the entire duration of this quoting process, and I was very nervous about the future of my career," the agent said.
However, under intense cross-examination by Eckstein, the agent admitted he made several "missteps" in the transaction with Liebscher.
Eckstein asked if each misstep would be considered a binding violation.
"I don't know how binding violations are counted," the agent replied. "I would assume it is one big binding violation."
Later, in response to further questioning from Eckstein, the agent admitted to the following errors:
• He didn't ask Liebscher if he had insurance
• He didn't ask Liebscher if he had a claim pending
• He didn't ask Liebscher for photos of his house prior to Sept. 1
• He didn't ask Liebscher for the serial number of the boat and motor.
• He didn't ask Liebscher for the VIN for the truck
After hearing all of the testimony, O'Melia directed the lawyers to submit proposed findings of facts and supporting briefs. The deadline for the submissions is Nov. 1 with replies due by Nov. 15.
After reviewing the submissions, O'Melia will rule as to whether the insurance company must defend Liebscher against the wrongful death claim or whether it has fulfilled its responsibilities to Liebscher with respect to the fatal accident.
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