Erie Insurance Company v. Scott L. Smith et al., Case no. 2015-1419
Sixth District Court of Appeals (Ottawa County)

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Can Evidence for Uninsured Motorist Benefits in Hit-And-Run Accident Be Derived from Driver’s Testimony?

Erie Insurance Company v. Scott L. Smith et al., Case no. 2015-1419
Sixth District Court of Appeals (Ottawa County)

ISSUES:

• For the purpose of uninsured motorist coverage involving an unknown hit-and-run operator, can independent corroborative evidence required from the insured be derived from the testimony of the person seeking coverage?
• Must additional required evidence be completely independent of, and not derived from, the testimony of the person seeking coverage?
• Can an insurance policy that contains the language in R.C. 3937.18(B)(3) regarding independent corroborative evidence be considered ambiguous leading to an interpretation in favor of the insured?

BACKGROUND:
Scott L. Smith was proceeding southbound on Plasterbed Road in Ottawa County at about 11 p.m. when he said a northbound vehicle went left of center, entering Smith’s lane of travel. To avoid the collision, Smith swerved his vehicle off the road where it struck several trees. Smith’s truck didn’t come into contact with the claimed northbound vehicle, and Smith wasn’t able to identify the driver of the vehicle or know where it was located. Other than Smith, there were no witnesses to the accident.

Smith reported the accident to a 911 dispatcher, and an Ohio State Highway Patrol officer met Smith at the scene of the accident to complete an investigation. Smith was not cited for any violation. He was transported to Magruder Hospital in Port Clinton for treatment of injuries.

Smith filed a claim with his auto insurer, Erie Insurance, seeking coverage for the accident from the uninsured motorist portion of the policy. To support his claim, Smith provided his testimony, the 911 call transcript, the Highway Patrol crash report and photos, and reports from various medical providers. Erie denied the claim, stating that coverage from an accident with a hit-and-run vehicle is provided if there is “independent corroborative evidence” that the hit-and-run driver caused the accident. Erie maintained that all the evidence came from “repackaged” statements that Smith made to others and there was no additional evidence that the other vehicle was actually present when he went off the road or that another vehicle had crossed over into his lane.

Smith and his wife filed a lawsuit against Erie seeking coverage, and an Ottawa County Common Pleas Court granted summary judgment to Erie, finding the evidence Smith presented wasn’t the independent corroborative evidence required by the policy.

Smith appealed to the Sixth District Court of Appeals, which reversed the trial court, holding the Erie policy was “susceptible of at least two interpretations,” and that under one interpretation, the medical records and police reports met the requirements to be considered the additional evidence Smith needed to obtain uninsured motorist coverage.

The Sixth District acknowledged its decision was in conflict with the Twelfth District Court of Appeal’s 2012 Brown v. Philadelphia Indem. Ins. Co. decision and certified the conflict to the Supreme Court, which agreed to hear the case.

Case Tests 20-Year-Old Policy Language
The case has drawn interest from statewide organizations representing auto insurers and attorneys for injured individuals, which filed amicus curiae briefs in the case. The parties note the “independent corroborative evidence” standard emerged from the Ohio Supreme Court’s 1996 ruling in Girgis v. State Farm Mut. Auto Ins. where the Court struck down a previous requirement that proof of actual physical contact was required to succeed in an uninsured motorist claim involving a “phantom vehicle” that no one witnessed but the motorist filing the claim.

The General Assembly adopted R.C. 3937.18(B)(3) in 1997 to reflect the requirement that instead of proof of contact, a person needed to provide independent corroborative evidence to succeed in a claim. Virtually all insurers of Ohio motorists placed provisions in their policies using the language from the statute. Erie and its supporters have argued it is unfair to claim the policy language is ambiguous if it was taken straight from the state law, which is presumed not to be ambiguous.

Meaning of ‘Additional Evidence’ Disputed
Erie objects to the Sixth District interpretation of the term “additional evidence” in the policy, which the appeals court concluded could be records and reports derived from statements Smith made to police and medical providers about the accident. The policy language reads: “The identity of the driver and owner of the hit-and-run vehicle must be unknown and there must be independent corroborative evidence that the negligence or intentional acts of the driver of the hit-and-run vehicle caused the bodily injury. Testimony of ‘anyone we protect’ seeking recovery does not constitute independent corroborative evidence, unless the testimony is supported by additional evidence.”

Erie maintains the policy language is almost identical to R.C. 3937.18(B)(3) and is clear the insured’s own testimony doesn’t constitute independent corroborative evidence. Erie argues the term “additional evidence” is an attempt by the legislature not to repeat the words independent corroborative evidence, but has the identical meaning. The company maintains the definition of “independent” and “corroborative” means the evidence must come from another source other than Smith and must add information that supports his version of the accident.

The company notes that Smith acknowledges there we no other witnesses, no one has been able to identify the other vehicle or driver, and there was no physical evidence at the site such as debris or skid marks indicating a car drifted in front of him. Erie suggests the 911 call, the crash report, and the medical records aren’t independent pieces of evidence because they all contain information gathered from Smith’s account of the accident.

“None of this ‘evidence’ is ‘independent,’ nor does it ‘corroborate’ anything. Rather, in each instance the proffered evidence merely repackages the statements Mr. Smith made to third parties,” Erie’s brief states. “Mr. Smith’s repackaged statements merely establish that he described the accident in a similar manner on three separate occasions, and do absolutely nothing to ‘strengthen’ Mr. Smith’s contention that a second vehicle was involved in and caused the accident.”

Erie Urges Court to Follow Twelfth District
Erie urges the Court to follow the conflicting case from the Twelfth District, Brown, in which a driver testified he saw headlights of an oncoming vehicle driving left of center and he swerved causing a single vehicle accident. The driver’s policy was nearly identical to Smith’s, and he submitted a crash report, medical records, and an affidavit of a treating physician as the “additional evidence” for the claim. A trial court agreed with the insurer’s denial of the claim for failure to provide independent corroborative evidence, and the Twelfth District affirmed, describing the reports to police and medical providers as “merely repackaged” statements. The appeals court stated that to meet the requirement, evidence must come from additional and independent sources other than the testimony of the driver.

Smith Contends Reports Meet the Standard
Smith argues the term “additional evidence” isn’t defined in the Erie policy, nor the statute, and the rule of Ohio law is those terms are defined by their common and ordinary meaning. He argues that using Erie’s interpretation giving “additional” the same meaning as “independent and corroborative” would gut the policy and deny coverage for a large number of legitimate claims for people who were legitimately injured by unknown motorists.

Smith contends “additional evidence” isn’t the same as independent third-party evidence that comes from sources completely separate from the person being covered. He also maintains that when the legislature drafted the statute following the Girgis ruling, it allowed more discretion for what additional evidence could be provided than what was suggested in the Court decision.

“This statute clearly gives insurance companies much discretion to decide what additional evidence would be required in addition to the testimony of the insured,” Smith’s brief states. “Erie could have required ‘independent third party testimony’ or independent additional evidence if it wished, but it did not put such language in the policy.”

Smith also takes issue with the claim that reports of police and medical providers are “repackaged statements,” and Erie implies Smith’s statements are not credible. The 911 call captures interaction with the dispatcher, the crash report contains the observations of the investigating officer, and the medical providers provide documentation of the injury that is all additional evidence separate from his statements, Smith argues.

Smith prefers the Sixth District analysis to the Twelfth District’s, and points to the Sixth District’s statement on the clause in the policy that reads: “Testimony of ‘anyone we protect’ seeking recovery does not constitute independent corroborative evidence, unless the testimony is supported by additional evidence.” The Sixth District ruled that if evidence based on the testimony isn’t independent corroborative evidence, then the term “additional evidence” seems redundant under Erie’s interpretation. If additional evidence is different than independent corroborative evidence, the reports Smith offered meet the policy requirements, Smith concludes.

Friend-of-the-Court Briefs
Amicus briefs supporting Erie have been submitted by the Ohio Insurance Institute (OII) and the Ohio Association of Civil Trial Attorneys. The OII argues the Sixth District created a “hyper-technical” ambiguity by claiming “additional evidence” wasn’t simply a shorthand reference to “independent corroborative evidence,” and noted the Ohio Supreme Court has repeatedly ruled that courts can’t invent “ambiguity” with alternative interpretations that are inconsistent with the purpose of the policy. OII maintains that Erie and many insurers adopted the language of R.C. 3937.18(B)(3) shortly after it was passed into law nearly 20 years ago, and the legislature didn’t believe its language was ambiguous.

“When a statutory provision is not ambiguous, policy language incorporating the statutory provision is not ambiguous,” the OII brief states.

The Ohio Association for Justice (OAJ) has filed an amicus brief supporting Smith. The OAJ argues that the independent corroborative evidence rule was designed to protect insurers against fraudulent claims, but the requirement can’t arbitrarily eliminate legitimate claims simply because no other witness was at the scene of the accident. OAJ argues it is up to juries to determine the credibility of the motorist claiming the accident was caused by another vehicle, and the additional evidence must support the claim.

OAJ argues there is no “exclusionary rule” in the Erie policy, the law, or the Girgis decision preventing additional evidence that is partially derived from the testimony of the person seeking coverage. OAJ also observed that Erie requires a driver to report the accident to police within 24 hours and that implies the company believes a police report is independent from the statements of its insured. The group notes that if the Sixth District decision stands, Smith and others in the same situation still must prove in court that accidents were caused by other motorists that no one else witnessed before insurance companies have to pay the claims.

- Dan Trevas

Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket.

Contacts
Representing Erie Insurance: D. Casey Talbot, 419.241.6000

Representing Scott L. Smith et al.: Steven Smith, 419.243.2100

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