Painter v. Continental Insurance

504 S.E.2d 285, 233 Ga. App. 436, 98 Fulton County D. Rep. 2780, 1998 Ga. App. LEXIS 988

• Court: Court of Appeals of Georgia
• Decided: July 15, 1998
• Docket: A98A0503
• Status: Published

Opinions

Johnson, Presiding Judge.

Plaintiff Painter brought an action against a “John Doe” driver for personal injuries and served the complaint on Continental Insurance Company which had provided motor vehicle insurance, including uninsured motorist coverage, for his employer’s vehicle. Plaintiff alleged that he was injured due to the negligence of the “John Doe” defendant when the vehicle he occupied crashed into a highway median after being struck by an unknown vehicle. Defendant moved for summary judgment contending that plaintiff failed to show either of the alternative prerequisites for recovery of a claim where the owner or operator of a vehicle causing damage is unknown as provided pursuant to OCGA § 33-7-11 (b) (2). Defendant’s motion for summary judgment was granted and plaintiff appeals.

Pursuant to OCGA § 33-7-11 (b) (2), plaintiff is required to establish either actual physical contact between the vehicle of the unknown party and the vehicle he occupied, or that his description of how the occurrence occurred is corroborated by an eyewitness other than himself. See State Farm &c. Ins. Co. v. Swetmon, 228 Ga. App. 538 (492 SE2d 678) (1997); Murphy v. Ga. Gen. Ins. Co., 208 Ga. App. 501 (431 SE2d 147) (1993); State Farm Fire &c. Co. v. Guest, 203 Ga. App. 711 (417 SE2d 419) (1992); Atlanta Cas. Ins. Co. v. Crews, 197 Ga. App. 48, 49 (1) (397 SE2d 466) (1990).

Plaintiff deposed that a co-worker, Horace Stewart, was driving the company owned pickup truck in the right-hand lane of 1-285 northbound when a vehicle merging from 1-20 westbound struck their vehicle. Plaintiff stated that: “He hit us in the back as he came off. He hit us on the back right corner. Started the truck to turn this way. Spun to the right. The front end did. When Mr. Stewart corrected it, it spun back hard the other way and seemed to catch traction and just shot right into the median concrete barrier between the lanes. And we hit him just pretty much straight head on. Went across all the traffic lanes. I don’t know how many it hit.” Plaintiff also testified that he felt and heard the impact of the unknown vehicle. Following the hearing on defendant’s motion for summary judgment, plaintiff filed the affidavit of Stewart which was considered by the state court in reaching its judgment. Stewart stated that: “an unidentified vehicle came off of the exit ramp from 1-20 West and caused their vehicle to swerve and lose control.”

The state court held that Stewart’s affidavit was not consistent with plaintiff’s deposition testimony and construed the supposedly conflicting testimony against plaintiff. See Gentile v. Miller, Stevenson & Steinichen, Inc., 257 Ga. 583 (361 SE2d 383) (1987). For the following reasons, the state court’s grant of summary judgment to Continental Insurance Company must be reversed.

1. Conflicting testimony. In this case, the claimant’s testimony on deposition as to how the incident occurred is not in material conflict with his description of the incident as evidenced in his complaint. Compare Atlanta Cas. Ins. Co. v. Crews, supra at 49 (2). Further, the affidavit of Stewart is not actually contradictory of Painter’s claim about the vehicle being struck by a phantom vehicle. However, even if it is considered contradictory, the rule of self-contradictory testimony does not apply to Painter. The rule in Prophecy Corp. v. Charles Rossignol, Inc., 256 Ga. 27, 28 (1) (343 SE2d 680) (1986), and thus perforce the similar rule as applied in Gentile, supra, “that a party/ witness testimony is to be construed against him when self-contradictory — does not apply to the testimony of a third-party witness.” Allen v. King Plow Co., 227 Ga. App. 795, 799 (4) (490 SE2d 457) (1997). Any inconsistency in Stewart’s affidavit could not be construed against Painter as to whom no self-inconsistent testimony as to this issue is shown. As Stewart’s sworn account on affidavit is not self-contradictory, within the meaning of Gentile and Prophecy, it remains viable evidence, evidence which corroborates Painter’s contention as to the existence of a phantom vehicle which caused the incident. Cf. Korey v. Bell South &c., 269 Ga. 108 (498 SE2d 519) (1998) (opposing party is not entitled to judgment in its favor where there is evidence other than the favorable portion of the equivocator’s self-contradictory testimony that supports the equivocator’s position).

2. OCGA § 33-7-11. OCGA § 33-7-11 (b) (2) pertinently provides: “A motor vehicle shall be deemed to be uninsured if the owner or operator of the motor vehicle is unknown. . . . [I]n order for the insured to recover under the endorsement where the owner or operator of any motor vehicle which causes bodily injury or property damage to the insured is unknown, actual physical contact must have occurred between the motor vehicle owned or operated by the unknown person and the person or property of the insured. Such physical contact shall not be required if the description by the claimant of how the occurrence occurred is corroborated by an eyewitness to the occurrence other than the claimant.” (Emphasis supplied.) The last sentence of this Code section was added to provide for coverage for accidents caused by unknown motorists where the unknown motorist’s vehicle does not contact the insured’s vehicle. Atlanta Cas. Ins. Co. v. Crews, supra at 49 (1).

It was not the intent of the legislature to create a rule which would arbitrarily preclude coverage, for example for a victim injured so rapidly or so severely she could not testify as to how the occurrence happened, regardless of the number of competent witnesses available to testify as to the actual involvement of a John Doe driver and his phantom automobile. Id. at 50 (3). Rather, it was the legislature’s intent “to create a reasonable rule which would reduce the possibility of fraudulent claims where the phantom vehicle did not cause actual physical contact, while still allowing an innocent automobile victim, ‘coverage for accidents caused by unknown motorists where the unknown motorist vehicle does not physically contact the insured’s vehicle,’ but where the claimant’s assertions of a phantom vehicle could be corroborated by an eyewitness.” (Emphasis supplied.) Id. What the legislature intended to be established with reasonable certainty, so as to preclude fraudulent claims, is the existence of a phantom automobile which caused the damage or injury. The legislature provided two methods by which this can be accomplished: (a) by proof of actual physical contact, or (b) by the claimant’s description of the occurrence corroborated by eyewitness testimony. The eyewitness does not have to be a disinterested third party. See Universal Security Ins. Co. v. Lowery, 257 Ga. 363 (359 SE2d 898) (1987).

The corroboration required by the eyewitness account is corroboration of that portion of the claimant’s description asserting the existence of a phantom vehicle which caused the incident; that is, existence and causation. This is the degree of corroboration that is necessary to reasonably reduce the possibility of a fraudulent claim. Other discrepancies between the claimant’s description and the eyewitness account should be treated like any other evidentiary conflict — as presenting issues for resolution by the factfinder as to witness credibility and evidentiary weight.

As there exists an eyewitness who adequately corroborates that portion of Painter’s description of the occurrence which asserts that a phantom vehicle was present and caused the incident, there exists no need to further inquire as to the existence of actual physical contact. Accordingly, the judgment of the trial court must be reversed.

The precedent in Bone v. State Farm Mut. Ins., 215 Ga. App. 782 (452 SE2d 523) (1994) is not relevant to the disposition of this case and therefore the legal principió which it addresses is not ripe for appellate reconsideration.

Judgment reversed.

Andrews, C. J., Pope, P. J., Blackburn, Smith, Ruffin, JJ., and Senior Appellate Judge Harold R. Banke concur. McMurray, P. J., Beasley and Eldridge, JJ., concur specially.