When a motorist is injured in an accident caused by avoiding an unidentified vehicle that fled the scene, evidence derived from the driver’s account, such as a police report, can be used as “independent corroborative evidence” to support a claim for uninsured motorist insurance coverage, the Ohio Supreme Court ruled.

In a 4-3 decision, the Supreme Court addressed a provision in Ohio auto insurance policies requiring “independent corroborative evidence” in so-called “phantom vehicle” cases where there are no witnesses other than the injured driver. Writing for the Court majority, Justice Paul E. Pfeifer determined the corroborative evidence does not have to come from a source completely unrelated to the driver’s statement, but can be in part based on the driver’s account if additional information is included.

In a dissenting opinion, Justice Sharon L. Kennedy wrote that the insurance contract at issue used language from a state statute that makes it clear the driver’s testimony cannot be part of the independent evidence required to support a claim. She asserted evidence such as police reports based solely on the driver’s accounts are simply “repackaged” versions of the driver’s testimony and not the additional proof the state law sought to make necessary for uninsured motorists (UM) coverage.

Man Injured on Rural Ottawa County Road
In July 2011, Scott L. Smith was driving south in his pickup truck late in the evening on Plasterbed Road in Ottawa County. According to Smith, a northbound vehicle crossed left of center causing him to swerve his truck off the road, and he drove into several trees. Smith call 9-1-1 reporting that he was injured and that the other driver fled the scene. Smith’s vehicle did not make contact with the other vehicle.

An Ohio State Highway Patrol trooper responded to the call. Smith could only identify the other vehicle as a “dark-colored SUV.” There were no other witnesses to the accident, and the other vehicle and driver were never identified. The trooper’s accident report was based solely on Smith’s account and stated that Smith had swerved to avoid an unknown vehicle that went left of center. The trooper attached to his report photos from the scene and a diagram of the roadway. The trooper noted Smith was driving on a flat, dry stretch of road and was approaching a T-intersection with another road.

Scott was treated for injuries at an emergency room and later received physical therapy. The medical and therapy reports described the injuries as resulting from the accident caused by another vehicle forcing Smith off the road. Those reports were based solely on Smith’s statements.

Smith filed a claim with his insurer, Erie Insurance Co., seeking uninsured motorist coverage. Erie denied the claim. Smith and his wife filed a lawsuit against Erie declaring they were entitled to coverage. The Smiths and Erie both asked the trial court for summary judgment in their favor. The trial court sided with Erie, holding that the policy requires an insured to provide “independent corroborative evidence” that the unknown driver caused the accident, and that provision meant Smith had to submit evidence, independent of his own testimony, that corroborated his account.

The Smiths appealed the decision to the Sixth District Court of Appeals, which found the policy was susceptible to two interpretations, one being the Smiths’ view that independent corroborative evidence can be comprised of medical records and police reports based on the insured’s testimony. The Sixth District reversed the trial court decision, but also noted its decision was in conflict with the Twelfth District Court of Appeals, which ruled in 2011 (Brown v. Philadelphia Indemn. Ins. Co.) that reports based solely on the driver’s testimony are essentially “repackaged” versions of the driver’s account and not the independent evidence required for an uninsured motorists claim. The Supreme Court agreed to hear the case to resolve the conflict.

Coverage Law Modified After Court Ruling
Justice Pfeifer explained that the insurance policy language for phantom vehicle accidents developed from the Ohio Supreme Court’s 1996 Girgis v. State Farm Mut. Auto. Ins. Co. decision. Prior to Girgis, motorists injured in a hit-and-run accident could only collect uninsured motorist coverage if contact occurred with the other vehicle.

The Court in Girgis found that the easy-to-apply physical contact requirement did not do justice to injured motorists, especially those who could present independent evidence that the other driver caused them to swerve and wreck. Justice Pfeifer wrote that the Court developed a “corroborative-evidence test” to replace the physical-contact requirement, and he characterized the test as a difficult burden for the motorist because it required “independent third-party testimony” that found the phantom vehicle caused the accident.

After the Girgis decision, Justice Pfeifer explained, the Ohio General Assembly, amended R.C. 3937.18, the uninsured motorist statute, to recognize that a driver could gain uninsured motorist coverage in a no-contact accident case.

He noted that the amended law did not track the requirement in Girgis of independent third-party evidence; although the statute requires independent corroborative evidence, it states that the insured’s own testimony supported by additional evidence can constitute independent corroborative evidence. R.C. 3937.18(B) states: “The identity of the owner or operator cannot be determined, but independent corroborative evidence exists to prove that the bodily injury, sickness, disease, or death of the insured was proximately caused by the negligence or intentional actions of the unidentified operator of the motor vehicle. For purposes of division (B)(3) of this section, the testimony of any insured seeking recovery from the insurer shall not constitute independent corroborative evidence, unless the testimony is supported by additional evidence.”

Insurers Add Statute to Polices
Justice Pfeifer wrote that in both the Erie policy and the Philadelphia policy in the conflicting Twelfth District case, the language tracked R.C. 3937.18(B)(3). Justice Pfeifer noted that “the policy language in this case is less restrictive to insureds than this court was in Girgis” because third-party testimony is not required. The Erie policy states: “Testimony of [the insured] seeking recovery does not constitute independent corroborative evidence, unless the testimony is supported by additional evidence.”

Justice Pfeifer concluded: “The policy thus states that the insured’s testimony can constitute ‘independent corroborative evidence.’ The insured’s own testimony constitutes independent corroborative evidence if that testimony is supported by additional evidence. That is a big difference from Girgis.

Unlike Girgis, Erie’s policy does not require “third-party testimony that the negligence of an unidentified vehicle” caused the accident, he noted, but instead, it requires only additional evidence supporting the causation testimony of the insured. He noted that neither the law nor the policies define the “additional evidence” that must support the insured’s own testimony.

“The evidence need be only additional and supportive,” Justice Pfeifer wrote. “A police report that describes a straight, dry roadway and that references no impairment of the driver and no finding of excessive speed could provide additional evidence that supports the insured’s testimony. A transcript of insured’s conversation with a 9-1-1 operator immediately following the accident—when the insured was in peril—could provide additional evidence supporting the insured’s testimony. Statements made to a police officer—for which an insured could face criminal liability if they were knowingly false —could constitute additional evidence that supports the testimony of the insured.”

The policy requires only that the additional evidence support the driver’s testimony and Justice Pfeifer wrote that “(s)upport is an exceedingly broad concept.”

“That was more generous language than this court set forth in Girgis, and the insurer may now wish it had not included it in the policy; but policy language controls this case, and it allows the insured to move past summary judgment and present this matter to the trier of fact,” he concluded.

The majority concluded the provision was susceptible to more than one interpretation and that such provisions should be interpreted to favor the insured. The Court affirmed the Sixth District’s interpretation, and remanded the case to trial court for further proceedings.

Chief Justice Maureen O’Connor and Justices Judith Ann Lanzinger and William M. O’Neill joined Justice Pfeifer’s opinion.

Dissent Finds Contract Language Clear
In her dissent, Justice Kennedy wrote the only reasonable interpretation of the Erie insurance contract in this case is that for purposes of seeking uninsured coverage for an accident caused by unknown driver who fled the scene, it requires the contract holder to submit evidence that is in addition to, and independent of, his or her testimony regarding the cause of the accident. “Just as clearly, the contract does not permit the insured’s repackaged testimony in another medium to serve as independent additional evidence of such an accident,” she wrote.

Justice Kennedy explained that Girgis eliminated the need for evidence of physical contact between vehicles as a requirement for an insurance contract holder to bring an uninsured motorist’s insurance claim for an accident caused by an unknown driver who fled the scene., However, she noted that the court in Girgis supplanted the contact requirement with another form of objective evidence, a witness who could testify as to the insured’s accident was caused by an unknown driver who fled the scene. She wrote the upshot of the ruling was to allow a claim only if there was independent evidence that the negligence of the unknown driver caused the accident.

Justice Kennedy wrote the legislature sought to echo the Girgis decision when it amended R.C. 3937.18(B), and while that statute expanded beyond Girgis’s requirement of  third-party testimony , the statute maintained an objective form of evidence requiring, “independent corroborative evidence.”

Consistent with R.C. 3937.18(B), the Erie contract in this case expressly requires “independent corroborative evidence.” Consistent with this need for objective evidence, Justice Kennedy would hold that the term “additional evidence” in the Erie insurance contact can only mean evidence that supports, but does not merely repeat, the insured’s testimony. Consequently, only evidence that is distinct from the insured’s testimony, not reports that merely repeat the insured’s account, can qualify as “additional evidence” under the Erie insurance contract.

Justice Kennedy noted that aside from his own testimony, the only evidence submitted by Smith in support of his claim that he’d been involved in an accident caused by an unknown driver was a police report, medical records, and 9-1-1 transcript of his call reporting the accident. “All these documents described Smith’s injuries as resulting from an accident caused by another vehicle’s forcing him off the road. However, in each case, the conclusion is based solely upon Smith’s statements to that effect. Therefore, these reports were merely a repackaging of Smith’s testimony, not additional evidence independent of his testimony,” Justice Kennedy wrote.

She also noted that no physical evidence such as debris or skid marks that would tend to corroborate Smith’s version of the events was presented, and nothing he submitted was “additional evidence” that was independent of his account.

Justices Terrence O’Donnell and Judith L. French joined Justice Kennedy’s opinion.

2015-1419. Smith v. Erie Ins. Co., Slip Opinion No. 2016-Ohio-7742.

View oral argument video of this case.

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