United States: Second Time Lucky: In Phantom Vehicle Cases, Ohio Insureds Can Now Corroborate Their Own Testimony

Last Updated: January 25 2017
Article by Robert D. Helfand

Hit-and-run drivers don't always hit; some motorists recklessly cause accidents without making contact, then vanish from the scene. Victims in such cases can often obtain coverage under the uninsured motorist (UM) provisions of their automobile policies. To prevent fraudulent claims, however, those policies typically condition coverage on the existence of objective evidence—something other than the testimony of the policyholder—showing that a so-called "phantom vehicle" was at fault. Recently, in Smith v. Erie Ins. Co., No. 2016-Ohio-7742 (Ohio Nov. 16, 2016), the Supreme Court of Ohio ruled that the policyholder's own out-of-court statements can satisfy this requirement. According to a 4-3 majority, the mere fact that an insured repeatedly blames an accident on an absent driver makes the insured's statements qualify as "independent corroborative evidence," sufficient to impose liability on the insurer. Like the result, the majority's reasoning in this case is highly problematic in at least two important ways. It potentially creates a serious difficulty for insurers processing future claims for UM coverage in Ohio.

It Happened One Night

Late one evening in July 2011, while headed south on Plasterbed Road in Ohio's Black Swamp region, Scott Smith's pickup truck swerved off the thoroughfare. Mr. Smith called 911 and reported that a "dark colored SUV" had crossed the divider from the northbound lane, and that he had driven into a group of trees to avoid a more serious collision. When a trooper of the Ohio State Highway Patrol arrived at the scene, Mr. Smith repeated his statement, and it was recorded in the trooper's report. Mr. Smith was then taken to a nearby emergency room, where his account of the accident was recorded in a medical report. It later made its way into reports prepared by Mr. Smith's physical therapist, as well.

The missing SUV was never identified. There were no other witnesses, and there was no physical evidence that another vehicle had entered the southbound lane.

The Phantom Menace

By the time of Mr. Smith's collision, accidents caused by "phantom vehicles" had already made a mark on Ohio's insurance law. Until the mid-1990s, UM coverage would apply to such cases, but only if there had been physical contact between the insured vehicle and the missing one. In 1996, in Girgis v. State Farm Mut. Auto. Ins. Co., 75 Ohio St.3d 302 (1996), Ohio's Supreme Court acknowledged that this physical contact requirement served an "obvious" purpose: "to prevent the filing of fraudulent claims." It nevertheless declared the requirement a violation of public policy, on the ground that a less exacting requirement could still prevent fraud, while avoiding the problem that the physical contact requirement "deprive[d] insured individuals of ... [UM] coverage even when independent third-party testimony is available."

To remedy that problem, the court adopted the "corroborative evidence test," which was already the rule in more than a dozen other states, and which

allows the claim to go forward if there is independent third-party testimony that the negligence of an unidentified vehicle was a proximate cause of the accident.

In 2001, Ohio's legislature amended the state's uninsured motorist statute. That law now provides (Ohio Rev. Code § 3937.18(B)(3)):

For purposes of any uninsured motorist coverage included in a policy of insurance, an "uninsured motorist" is the owner or operator of a motor vehicle if any of the following conditions applies: ...

The identity of the owner or operator [of the uninsured vehicle] cannot be determined, but independent corroborative evidence exists to prove that the [harm to] the insured was proximately caused by the negligence or intentional actions of the unidentified operator ... . For purposes of [this definition], the testimony of any insured seeking recovery from the insurer shall not constitute independent corroborative evidence, unless the testimony is supported by additional evidence.

The statute's requirement differed from the one adopted in Girgis, in that it could be satisfied by any form of "independent corroborative evidence," and not just "third-party testimony."

Mr. Smith's insurance policy closely tracked the language of this statute:

"Uninsured motor vehicle" means a "motor vehicle: ...

which is a hit-and-run "motor vehicle." 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.

Judgment Day

When Mr. Smith and his wife sought UM coverage for his accident, their insurer denied the claim, on the ground that they had failed to provide "independent corroborative evidence" for the involvement of the "dark colored SUV." The Smiths filed an action in an Ohio state court, for breach of contract and declaratory judgment, and the court granted summary judgment to the insurer. The court found that the term "additional evidence," although not defined in the policy, could not include police and medical reports that merely transcribed (or, in the insurer's words, "repackaged") the insured's own statements.

An intermediate appellate court reversed that award, on the ground that the term "additional evidence" was "susceptible of at least two interpretations," one of which would include "items of evidence, such as medical records and police reports, that are based on the testimony of the insured ... ." Thus, the court held that the term was ambiguous, and that the ambiguity had to be resolved in favor of the policyholder.

This decision conflicted with the ruling of another District Court of Appeals, in Brown v. Philadelphia Indemn. Ins. Co., No. CA2010–10–094 (Ohio Ct. App. May 9, 2011). The Supreme Court accepted the Smith case to resolve the conflict.

The Narrow Margin

In the Supreme Court, the justices sparred over the meaning of the last sentence of the relevant provision in the plaintiffs' policy (i.e., "Testimony of 'anyone we protect' seeking recovery does not constitute independent corroborative evidence, unless the testimony is supported by additional evidence"). Three dissenting justices read the sentence to mean that "the insured's testimony does not by itself constitute [the] independent corroborative evidence" that is required to invoke coverage, and they concluded:

Because an insured's testimony can never be 'independent corroborative evidence,' it is a truism that the insured's testimony repackaged in a police or medical record cannot be 'independent corroborative evidence.' ...

'Additional' means 'existing or coming by way of addition,' and 'addition' means 'something added that improves or increases value.' 'Additional evidence' therefore must be evidence that supplements, rather than repeats, the insured's testimony.

The four-justice majority, on the other hand, saw the glass as half-full: they read the same sentence to mean that an insured's testimony can count as "independent corroborative evidence"—so long as it is "supported by additional evidence." They noted that this possibility marks a "big difference" from the rule adopted in Girgis, under which the only acceptable form of "corroborative evidence' was "third-party testimony." In the majority's view, the insured's testimony becomes "corroborative" when accompanied by evidence that "need be only additional and supportive"—and it found that "[s]upport is an exceedingly broad concept."

In light of that analysis, the majority held that the policy's "generous language" is

certainly susceptible of the interpretation that any evidence apart from the insured's testimony, either derived from the insured's testimony or not, is sufficient to constitute 'additional evidence' under the policy.


Even if the policy language can also be interpreted to mean that the 'additional evidence' must be independent of ... the insured's testimony, '[w]here provisions ... are reasonably susceptible of more than one interpretation, they will be construed strictly against the insurer ... .

Begin Again

The majority's opinion failed to address some important questions.

To begin with, while acknowledging that "courts must give effect to the intent of the parties" when interpreting insurance policies, the court ignored the evidence that what the parties intended was to make the coverage co-extensive with the requirements of Ohio's UM statute—the language of which the policy closely tracked. The majority even speculated that the insurer "may now wish it had not included" in its policy the "generous language" that allowed for more types of corroborative evidence than just "third-party testimony." That suggestion ill accords with the statute, which uses identical "generous language" to define the term "uninsured motorist," and which also states that this definition applies to "any uninsured motorist coverage included in a policy of insurance."

In other words, a less "generous" term in the Smiths' policy (for example, one which required that the insured's testimony be corroborated by a third-party witness) would almost certainly have been unenforceable. Therefore, the real question about the meaning of the policy was whether it reasonably reflects an intent to apply evidentiary rules that are even more "generous" than the ones created by Section 3937.18.

If the answer to that question is "no" (as the virtually identical language of the two texts suggests), then there was no ambiguity, and the case should have been resolved by interpreting the statute's requirements. In that regard, it is significant that when the legislature adopted the current language in 2001, it did so as part of a broader group of amendments that reduced the requirements imposed on insurers—such as a prior mandate that UM coverage be offered to all insureds. Furthermore, the Editor's and Revisor's Notes which accompanied the amendments stated:

In enacting this act, it is the intent of the General Assembly to ... [e]xpress the public policy of the state to: ...

[p]rovide statutory authority for the inclusion of exclusionary or limiting provisions in uninsured motorist coverage ... .

The Notes stated that the amendments were intended to "supersede" several decisions of the Ohio Supreme Court—but Girgis was not among them. There is little evidence, then, that the General Assembly was trying to be more "generous" to insureds than the Supreme Court had already been.

The Outer Limits

A second matter that the majority's decision failed to clarify is the question of how far its ruling extends. The opinion cited two types of evidence which, in the majority's view, could be both "supportive" of, and "additional" to, an insured's own account of her accident. Both types were present in the claim submitted by Mr. and Mrs. Smith.

One type consists of independent, circumstantial evidence that is consistent with the "phantom vehicle" theory: in this case, Mr. Smith produced "[a] police report that describes a straight, dry roadway and that references no impairment to the driver and no finding of excessive speed." The other is a statement the insured has made when he had a special motive or incentive to be truthful. Here, the court implied that Mr. Smith's 911 call was a kind of "excited utterance"  (it was made "when the insured was in peril"), and it observed that the statement recorded in the Highway Patrol report (arguably, a "public record" under FRE 803(8))  was one for which he "could face criminal liability if [it] were knowingly false."

But the court did not discuss other possibilities that were raised in the insurer's brief—such as a case in which the policyholder "writ[es] on a napkin that another vehicle had run his vehicle off of the road, and then submit[s] the napkin as 'additional evidence.'" Would evidence of this type be sufficiently "supportive" to turn the insured's testimony into "corroborative evidence"? The majority said the concept of "support" is "broad," not "infinitely broad." But it also said the policy could reasonably be interpreted to mean that "any evidence apart from the insured's testimony ... is sufficient to constitute 'additional evidence' under the policy."

The question is not an idle one, because Ohio insurers now risk exposure to bad faith claims if they guess wrong about what the Smith decision requires. Even if the insured who scribbles his "additional evidence" on a serviette is not entitled to UM coverage (perhaps a document that is of little or no probative value doesn't count as "evidence"?), there is still no clear answer to the question of how insurers are supposed to measure the level of "support" that other out-of-court statements provide. Do the hearsay exceptions set the boundaries? Can statements which would not be admissible under the rules of evidence nevertheless serve to establish a valid UM claim? The majority simply failed to address these matters.

Tune In Tomorrow

Phantom vehicle cases have always been hard, because the risk of doing injustice to the insured is basically in equipoise with the risk of fraudulent claims. In Smith, the Ohio Supreme Court put a thumb on the scale for the policyholder. Equally troubling, it exposed insurers to bad faith claims for hard cases that arise in the future.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

In association with
Related Topics
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions