Hit by a Hit-and-Run Driver? How Your Own Policy Pays

Published March 27, 2012 · Injury Law Basics

The other car runs the light on Far Hills Avenue, slams into your door, and keeps going. You are left with a crumpled car, a trip to the emergency room, and no idea who hit you. Last fall I wrote about Ohio's tougher criminal penalties for hit-and-run drivers. Those penalties matter, but they do not pay your medical bills. When the driver who hurt you is never found, the policy that pays is usually your own, and Ohio law sets specific rules for how that claim works.

Uninsured motorist coverage is built for this

Uninsured motorist coverage, usually called "UM," is the part of your own auto policy that pays what the at-fault driver would have owed you if that driver has no insurance. Under R.C. 3937.18, Ohio treats an unidentified driver the same way it treats an uninsured one. Division (B)(1)(c) of the statute says an "uninsured motorist" includes an owner or operator whose identity cannot be determined, as long as there is independent proof that the unidentified driver caused your injury.

In plain terms: if the driver who hit you fled and cannot be identified, your UM coverage steps into that driver's shoes. You make a claim against your own insurer for your medical bills, lost wages, and pain and suffering, up to the UM limits you purchased.

Two things follow from that. First, you need to have UM coverage. Ohio insurers are permitted to offer it, but since 2001 the statute has not required you to buy it. If it is not on your policy, there may be nothing to claim. I explained why that matters, and why a claim against the agent who left it off can expire before you ever need it, in my post on missing UM/UIM coverage. Second, once you make a UM claim, your own insurer is no longer simply on your side. It owes you the money, and it will evaluate your claim the way it would evaluate a claim from a stranger.

The corroboration rule

Here is the part of the statute that decides most hit-and-run claims. R.C. 3937.18(B)(1)(c) requires "independent corroborative evidence" that the unidentified driver's negligence caused your injuries. The statute goes on to say that your own testimony, standing alone, does not count as independent corroboration unless it is supported by additional evidence.

The legislature wrote that rule because insurers worried about drivers who crash on their own and then blame a "phantom" car that no one else saw. Fair or not, the rule means that your word is not enough. You need something else. The kinds of evidence that satisfy the requirement include:

• A witness. A passenger, another driver, or a bystander who saw the other vehicle. Their testimony is independent of yours.
• Physical evidence of contact. Paint transfer on your car, damage patterns consistent with being struck, debris from the other vehicle at the scene.
• A police report that documents more than your account. The responding officer's own observations of skid marks, debris, and damage can corroborate your version.
• Video. Traffic cameras, business security cameras, and gas station cameras near the scene.
• The other driver's vehicle, if it is found later. A partial plate, a description, or a car with matching damage in a nearby neighborhood.

Notice what is not on that list: your statement to the insurer, no matter how detailed or sincere. A hit-and-run claim is won or lost on what you can gather in the first hours and days.

What to do at the scene and right after

I spent nineteen years as a Dayton police officer before practicing law, and I can tell you that the hit-and-run cases that get solved, and the UM claims that get paid, share the same ingredients.

1. Call 911 and insist on a report. Even if the other car is gone, a police report creates an official record of the time, place, and physical evidence. Tell the officer everything you noticed about the other vehicle: color, type, direction of travel, any part of the plate.
2. Get names and numbers from anyone who stopped. Witnesses leave quickly. A name and phone number written on your hand is worth more than a perfect memory of the crash.
3. Photograph everything before the car is moved. The damage, the debris field, the paint on your bumper, the intersection, the traffic signals.
4. Look for cameras. Note every business within sight of the crash. Their video is often overwritten within days, so this cannot wait.
5. Get medical care the same day. The medical record ties your injuries to the crash.
6. Notify your own insurer promptly. Most policies require prompt notice of a UM claim, and many require that you report a hit-and-run to the police within a short time. Do not delay because you assume the other driver will be found.

Deadlines and other traps in your own policy

Under R.C. 3937.18(H), an Ohio auto policy may require that any UM claim or lawsuit be brought within three years of the crash. Most policies include that clause. As I explained in my post on the three-year UM/UIM trap, the deadline can run even while you are still treating or still hoping the driver will be caught.

The statute also provides, in division (D), that you must prove every element of your claim that you would have had to prove against the driver: that the driver was negligent, that the negligence caused your injuries, and what your damages are. Your insurer can raise every defense the fleeing driver could have raised, including comparative fault.

Finally, if the driver is later identified and has assets or insurance, your insurer has a right under division (J) to be repaid from any recovery against that driver. Your lawyer has to manage that relationship so that your own recovery is protected.

What this means for you

• Check your declarations page for UM coverage now. If you do not have it, add it. It is inexpensive protection against the one kind of driver you can never sue.
• Treat a hit-and-run like an evidence problem from the first minute. The corroboration rule means the claim is only as good as the proof you collect.
• Expect your own insurer to investigate you. It will ask for a recorded statement, your medical records, and a detailed account. You are required to cooperate, but you are entitled to have a lawyer prepare you and attend.
• Do not let three years sneak up. A hit-and-run claim that is still "pending" with the insurer can expire just like any other.

Our office handles hit-and-run and uninsured driver claims throughout the Dayton area, including the claim against your own insurer. You can learn more about how UM/UIM claims work on our practice page.