Run Off the Road by a Phantom Driver? How to Prove a No-Contact Uninsured Motorist Claim (Smith v. Erie)

Published November 23, 2016 · Ohio Supreme Court

Late on a July night in Ottawa County, Scott Smith was driving his pickup down a flat, dry country road when a dark SUV came at him left of center. He swerved, left the road and hit a stand of trees. The SUV never touched him and never stopped. There were no other witnesses. Mr. Smith called 911 from the scene, told the state trooper what happened, went to the emergency room, and later filed a claim under the uninsured motorist coverage he had paid Erie Insurance for.

Erie denied the claim. Its position, which the trial court accepted, was that Mr. Smith's own word was not enough and that everything else he had, the 911 recording, the trooper's report and his medical records, was just his own word repeated by other people.

On November 16, 2016, the Supreme Court of Ohio disagreed. Smith v. Erie Insurance Co., 148 Ohio St.3d 192, 2016-Ohio-7742, is the most important decision for hit-and-run and phantom-vehicle victims in twenty years, and it went the right way.

Why no-contact claims are hard

Uninsured motorist coverage pays when the driver who hurt you has no insurance. An unidentified driver who flees is treated as uninsured. The problem with a phantom-vehicle claim, from the insurer's point of view, is fraud: anyone who runs off the road alone could claim a mystery car forced him off.

For many years Ohio insurers handled that risk by requiring physical contact; no dent, no claim. In 1996 the Supreme Court held in Girgis v. State Farm that a contact requirement violated public policy, but it replaced the contact rule with a demanding one of its own: the claim could proceed only with "independent third-party testimony" that the unidentified driver caused the crash. A victim with no eyewitness was still out of luck.

The General Assembly then rewrote the uninsured motorist statute. As it stood when Mr. Smith's policy was written, R.C. 3937.18(B)(3) allowed a claim where the driver cannot be identified "but independent corroborative evidence exists" to prove the unidentified driver caused the injury, and it added that the insured's own testimony does not count "unless the testimony is supported by additional evidence." Erie's policy tracked that language almost word for word. I explained the basics of these claims in an earlier post on hit-and-run coverage.

The fight in Smith was over two words: "additional evidence." Erie said it had to be evidence independent of the insured, meaning a witness, skid marks, debris, paint transfer. Mr. Smith said it meant any evidence beyond his bare testimony, including records that were created from his account.

What the Court held

Justice Pfeifer, writing for a four-justice majority, read the policy as written. The policy does not say "additional testimony," and it certainly does not say "independent third-party testimony." It says additional evidence, and the Court held that "[t]he evidence need be only additional and supportive."

The majority gave concrete examples. A police report that describes a straight, dry road with no sign of impairment or excessive speed can support the insured's account. A recording of the 911 call made moments after the crash, "when the insured was in peril," can support it. Statements to a police officer, which expose the speaker to criminal liability if knowingly false, can support it. The additional evidence does not itself have to prove who caused the crash; it has to support the insured's testimony about who did. "Support," the Court said, "is an exceedingly broad concept."

The Court added a second, independent reason. Even if Erie's reading were also reasonable, Ohio law construes an ambiguous insurance policy against the insurer that wrote it. Erie chose language more generous than Girgis, and the Court held the company to its choice. The case now goes back for a jury to decide whether the phantom SUV was real.

Justice Kennedy, joined by Justices O'Donnell and French, dissented. In her view "additional evidence" must mean evidence distinct from the insured's story, and records that merely repackage that story do not qualify. That had been the rule in the Twelfth District, which covers Warren, Butler and Clermont Counties, since 2011. Smith overrides it statewide.

What this means in practice

For the person who swerves to avoid a driver who never stops, Smith means the claim lives or dies on what you do in the first hour and the first week. Every item the Court pointed to is something the victim controls.

Call 911 from the scene, before you do anything else. Tell the dispatcher what the other vehicle did, what it looked like, and which way it went. The recording is time-stamped, it is made while you are still in the ditch, and under Smith it is corroborating evidence.

Wait for the officer and give a full, accurate statement. The crash report will record the road conditions, your speed, your sobriety and your account. A clean report that fits your description of a sudden evasive maneuver is exactly what the Court described as supporting evidence.

Get medical care right away and tell the provider how the crash happened. The history in your ER chart is contemporaneous and, after Smith, it counts. I have written before about why seeing a doctor promptly matters; in a phantom-vehicle case it matters twice.

Look for anything physical. Skid marks, gouges, the evasive path through the grass, debris, paint, a dash camera in your car or a neighbor's, a business camera facing the road. The insurer will still argue that documents derived from your account are weak; physical evidence ends the argument.

Notify your own insurer promptly and in writing. Uninsured motorist policies carry their own notice requirements and, under Ohio law, can require suit within three years. Do not let the claim age.

The adjuster's next move

Expect your own insurer to treat you like an adversary. The adjuster will take a recorded statement looking for inconsistencies, ask why no one else saw the SUV, and suggest you simply fell asleep or overcorrected. After Smith, "no witness" is no longer a reason to deny the claim, and an insurer that denies on that basis alone may be acting in bad faith. These are the claims our hit-and-run and uninsured driver practice was built for, and the UM/UIM page explains the deadlines and consent rules that apply.

One more reminder: the uninsured motorist limit on your policy is the ceiling. If you carry the state minimum, the most a phantom-driver claim can pay is $25,000 no matter how serious the injury. Check your declarations page now; I explained the math behind UM and UIM limits in a post earlier this year.

What this means for you

A phantom-vehicle crash is not a hopeless claim anymore. The Supreme Court has said that your own account, backed by a 911 call, a police report and medical records, is enough to get to a jury. The burden is on you to create that record immediately and on your insurer to pay what you bought. Our car crash practice handles these claims from the first call through trial.