If the police cannot identify a hit and run driver that hurt you, your only way to recover may be your own uninsured motorist coverage. You can bring a suit against “John Doe” (a stand-in for the hit and run driver) and your insurance carrier to try to recover. In a recent appellate decision, the court reviewed whether it was appropriate to grant summary judgment in favor of a “phantom driver” defendant in a one-car accident.
The plaintiff had filed suit against John Doe, an unknown driver who had allegedly forced him off the road causing his injuries. The lawsuit was brought so that the plaintiff could recover against his uninsured motorist carrier. However, the court found there was no evidence to corroborate the plaintiff’s claim.
The plaintiff argued that an eyewitness had provided an affidavit and deposition testimony to corroborate his claims. He appealed on this basis. The appellate court agreed and reversed the grant of summary judgment. It explained that if there is no evidence of physical contact between an insured’s vehicle and an unknown vehicle, an eyewitness must corroborate an insured’s description of how an accident happened. OCGA § 33-7-11 (b) (2) requires this. Without evidence of contact or a third party’s eyewitness testimony about how an unknown driver caused an accident, a trial court can properly grant summary judgment to an uninsured motorist carrier.
With OCGA § 33-7-11 (b) (2), the legislature had not intended to create a rule that randomly precluded coverage. Rather, the goal was to reduce fraudulent claims. It was important to establish a “phantom” automobile that caused the damage or injury through the eyewitness testimony coupled with the claimant’s own statement, or by proving a car actually physically contacted the claimant’s car. The eyewitness does not need to be disinterested.
In this case, the claimant described losing control of his vehicle after swerving to avoid a car that pulled out in front of him as it got on the roadway from a shopping center parking lot. He submitted a recorded statement, sworn affidavit, and eyewitness deposition testimony. The eyewitness had provided a declaration stating he was at a convenience store on the highway in Georgia when he saw a new dark-colored car com out of a shopping center and cut off someone driving a green Mitsubishi (the plaintiff.) The car’s movement caused the plaintiff to lose control of the Mitsubishi in trying to avoid a crash. The new car did not stop when the plaintiff’s Mitsubishi flipped multiple times and crashed.
In spite of this declaration, the eyewitness sounded less certain in a later- recorded statement and at his deposition. He told an insurance adjustor he saw a car go in front of the plaintiff’s car to cause the accident. Later he admitted he didn’t know exactly how the other car caused the accident or what the car had done before the accident. At deposition, the eyewitness testified he saw a car come out from the store and then saw the vehicle flip. He admitted he hadn’t seen the whole thing.
However, he was consistent about certain details, including the existence of the other car, which was the only other car on the road, the sounds of the brakes squealing and a tumbling noise, and the plaintiff’s car flipping as it left the road. He never repudiated his declaration, though he admitted the plaintiff was dating his wife’s sister and the wrecked car was hers.
The lower court didn’t hold a summary judgment hearing. It ruled that because the eyewitness’s affidavit was a photocopy, not an original, it was not enough to withstand summary judgment. It entered a judgment for John Doe, the phantom driver.
The appellate court explained it was an error to disregard the corroboration in the eyewitness’s affidavit. John Doe had not objected to the affidavit, which was secondary evidence as a photocopy. Doe also argued that the eyewitness’s contradictory account failed to offer enough corroboration. The appellate court explained that it was enough that the eyewitness gave testimony of another car and that the accident happened the way the plaintiff claimed. Whether the accident happened the way the plaintiff claimed was an issue for the jury.
If you are seriously injured in a car accident because somebody else was negligent or reckless, you may have grounds for a personal injury lawsuit. Experienced Atlanta personal injury attorney Terrence R. Bethune can evaluate your case and fight for any compensation you may deserve. Contact us at 404-875-7800 or via our online form.
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