Road Rage and Intentional Acts: Insurance Exclusions and Whether Your UM Coverage Pays

Published February 16, 2021 · Injury Law Basics

The other driver tailgated you down Route 4 for two miles, swerved in front of you, and slammed on his brakes. Or he followed you into a parking lot, got out, and swung at you. Or he simply rammed your car on purpose. You are hurt, and a few weeks later his insurance company sends a short letter: the policy does not cover intentional acts, so the claim is denied.

Many people stop there. They should not. A denial based on an intentional-act exclusion often opens the door to a different source of money: your own uninsured motorist coverage. This post explains how.

Why the other driver's insurer says no

Nearly every auto liability policy excludes injury that the insured driver intended to cause. The idea is that insurance covers accidents, not assaults. When the evidence shows the other driver deliberately rammed or brake-checked you, his insurer will invoke that exclusion and refuse to pay.

Sometimes the insurer is right, and sometimes it is reaching. A driver who brake-checks to "teach you a lesson" may not have intended to injure anyone, and the line between reckless driving and an intentional injury is often disputed. That question alone is worth a lawyer's review. But even when the exclusion applies, the analysis is not over.

How Ohio's UM statute treats a denial of coverage

Ohio's uninsured and underinsured motorist statute, R.C. 3937.18, defines who counts as an "uninsured motorist" for purposes of UM coverage. Under R.C. 3937.18(B)(2), one of those situations is when "the liability insurer denies coverage to the owner or operator."

Read that again with the road-rage denial letter in mind. When the other driver's insurer refuses to cover him, he can become, for purposes of your policy, an uninsured motorist. Your UM coverage, which exists to pay what you are legally entitled to recover from a driver without coverage, may then step in.

The statute also addresses drivers who flee. Under R.C. 3937.18(B)(3), an unidentified driver is an uninsured motorist when independent corroborative evidence shows the injury was proximately caused by "the negligence or intentional actions of the unidentified operator." The legislature specifically included intentional actions. A road-rager who rams you and speeds off is squarely within that language, provided there is corroborating evidence beyond your own testimony.

The policy language still matters

The statute sets the framework, but your policy is a contract, and its wording controls many of the details. Expect your own insurer to look closely at three questions:

• Was it an "accident"? Many UM forms cover injury "caused by an accident." Whether an intentional attack counts as an accident from the injured person's point of view depends on the policy's wording, and insurers do not always agree.
• Did the injury arise out of the "use" of the uninsured vehicle? Being rammed by a car is an injury from the use of a vehicle. Being punched by a driver who got out of his car is a harder question, and the answer depends on the facts and the policy. Do not assume either way; bring the policy in.
• Can you prove the claim? Under R.C. 3937.18(D), you must prove every element you would have to prove against the at-fault driver himself. Evidence wins these cases.

Our guide chapter on using your own insurance explains how UM and UIM coverage work generally, and our uninsured and underinsured motorist claims page covers the claim process in more depth.

The attacker is still personally responsible

Your insurance is one avenue. The other driver is another.

A driver who intentionally injures you can be sued directly for assault and battery and for reckless driving. Ohio also gives a separate civil remedy to "anyone injured in person or property by a criminal act" under R.C. 2307.60(A)(1). In Buddenberg v. Weisdack, 2020-Ohio-3832, the Supreme Court of Ohio held last year that this remedy does not require a criminal conviction. I explained that decision in our post on suing without a conviction. If prosecutors decline to charge the other driver, or a plea deal reduces the charge, your civil case does not depend on it.

A personal judgment against an individual is only as good as his assets, which is why the UM claim often matters more. But both claims belong in the plan.

Criminal restitution is not compensation

If the other driver is prosecuted, the criminal court can order restitution. Restitution in Ohio is tied to economic loss, meaning things like medical bills and lost wages. It does not compensate pain, suffering, or permanent injury, and it does not prevent you from bringing a civil case. Cooperate with the prosecutor and attend the hearings, but do not treat a restitution order as the end of your recovery.

Watch two different clocks

An action for assault or battery against the attacker must generally be brought within one year under R.C. 2305.111(B), which is half the time allowed for an ordinary negligence claim. Separately, R.C. 3937.18(H) allows your policy to require that a UM claim be made or suit filed within three years after the crash. Those deadlines can run on different tracks, and neither waits for the criminal case to finish.

The evidence that wins road-rage claims

Intentional-act cases turn on proof of what the other driver did and why. The most useful evidence includes:

• Dash-cam video, yours or a witness's. I wrote in 2017 about how dash cameras win cases; road rage is the best example.
• 911 audio. Calls made during the pursuit often capture the plate number, the location, and the fear in your voice. Request them quickly; they are not kept forever.
• The police report, including any charges filed and the officer's notes on statements made at the scene.
• Independent witnesses who saw the tailgating, the swerve, or the confrontation.
• Phone evidence. Aggressive driving and phone use often go together, and phone records can show what the other driver was doing.

What this means for you

If an insurer has denied your claim because the other driver acted on purpose, that letter may be the beginning of your UM claim rather than the end of your case. Notify your own insurer in writing that you may have an uninsured motorist claim, keep every piece of evidence, and do not give anyone a recorded statement until someone has read your policy.