Smith et al. v. Erie Insurance Company
148 Ohio St.3d 192
Insured was driving late in the evening when another vehicle traveling the opposite direction, crossed the center line. This caused Insured to swerve off of the road, into several trees in order to avoid a collision. There was no physical contact between the two cars and the other driver fled the scene.
Insured called 9-1-1 and reported a “dark colored SUV” had run him off the road, but no other evidence could be found of this other driver’s existence. A trooper on scene wrote a report reciting the facts and noted that Insured was driving on a flat, dry stretch of road. After hospital treatment, Insured filed a claim with Erie Insurance Company seeking uninsured-motorist coverage and was denied. The policy required, “independent corroborative evidence” that the negligence that resulted in bodily harm was caused by the unknown driver. The policy also stated, “testimony of [the insured] seeking recovery does not constitute independent corroborative evidence, unless the testimony is supported by additional evidence.”
Insured brought a claim against Erie, but the trial court granted summary judgment for Erie due to a lack of “additional evidence” that was required under the policy. The appellate court determined there could be two interpretations of additional evidence. Additional evidence could be independent, third party evidence, not from insured or it may consist of any evidence such as police reports and hospital records. Due to this ambiguity, the court strictly construed the contract against the insured and adopted the interpretation favorable to Insured. A conflict was certified for further proceedings.
Whether the policy language is ambiguous leading to an interpretation in favor of the insured 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, or whether the policy is unambiguous and the “additional evidence” must be independent of, and not derived from, the insured’s testimony.
The language at issue is susceptible to 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.
Girgis v. State Farm Mut. Auto. Ins. Co., abolished the physical-contact rule for uninsured motorist claims (without physical contact, a claim by an insured could not prevail) and replaced it with the corroborative-evidence test. In cases where an unidentified driver’s negligence caused harm, the corroborative-evidence rule required independent third-party testimony that the unidentified driver was the proximate cause of the harm.
Shortly after Girgis, the General Assembly amended R.C. 3937.18 (the uninsured motorist statute) and codified the requirement for independent corroborative evidence, but added, “testimony of any insured seeking recovery from the insurer shall not constitute independent corroborative evidence, unless the testimony is supported by additional evidence.” The language provided in the policy between Insured and Erie very closely resembles the language provided by R.C. 3937.18.
The Court starts by saying that since an insurance policy is a contract, we must give effect to the intent of the parties, which is reflected by the plain and ordinary meaning of the words. Granger v. Auto–Owners Ins., 144 Ohio St.3d 57 (2015). The Court believes that the clause, by it’s plain meaning, does not require third-party testimony and reasons that since testimony by the insured can become independent corroborative evidence through additional evidence, it is cannot require third-party testimony. This is unlike Girgis, which under the policy, directly stated that third-party testimony was required. Since the policy does not directly speak to third-party testimony or at least say something like, “additional testimony,” the evidence needed must only be additional and supportive.
Since supportive is an extremely low standard, a 9-1-1 transcript or a police report describing that the insured did not seem to have any impairments, is additional evidence. The additional evidence does not even have to go to proximate cause, it merely has to support insured’s testimony regarding the proximate cause.
Under the plain meaning of the policy, the Court holds that Insured is allowed to use additional evidence to support his testimony. This additional evidence can cause Insured’s testimony to arise to independent corroborative evidence.
Dissent: The dissent does not agree with the interpretation made by the majority. They feel that there are two requirements. First, independent corroborative evidence is needed. Second, it cannot come in the form if insured’s testimony. Next, additional evidence provides the qualifier – only if additional evidence exists, the insured will have the requisite independent corroborative evidence. Finally, if the insured is “repackaging” their testimony in different forms (what he told the policy or what he told the 9-1-1 operator), then this is not additional evidence. Additional evidence must be something more.
Dennis P. Sawan
Licensed in Ohio and Georgia
Christopher A. Sawan
Licensed in Ohio and Michigan