Underinsured Motorist Insurance: Proving a Phantom Vehicle Claim

Underinsured/uninsured motorist (UIM) coverage provides coverage for bodily injury and/or property damage. In Washington, UIM coverage is optional, but an insurance company is required to offer it to policyholders at the time they apply for an automobile liability insurance policy. Generally, UIM coverage operates to provide compensation to policyholders for injuries and/or damages suffered as a result of an automobile collision or pedestrian accident caused by a third party’s negligence.

In a typical collision, both the collision and the third party’s fault can be established by property damage between the involved vehicles, as well as statements of the involved parties and any witnesses to the accident. But what happens when there is no contact between the vehicles and the at-fault driver flees the accident scene?

Consider this scenario: vehicle 1 is lawfully driving at a lawful speed in the far left lane on a freeway. Vehicle 2, traveling slightly ahead of vehicle 1 in the lane immediately to the right, suddenly merges into vehicle 1’s lane. To avoid a collision, vehicle 1 brakes and swerves to the left, causing vehicle 1 to strike the center divider before coming to rest. Vehicle 1’s driver is injured. Vehicle 2 flees the accident scene. No other drivers who witnessed the incident stop, so vehicle 1’s driver is the only witness to the incident.

Now consider this scenario: Peter, a pedestrian enters the crosswalk of a busy intersection, seconds after the walk signal indicates it is his turn to cross the street. Unbeknownst to Peter, a vehicle to Peter’s left tries to run the yellow light at the intersection just as it turns red, and ends up speeding through the intersection directly at Peter. Luckily, the driver sees Peter seconds before hitting him, and swerves the vehicle to the left passing him by just a few inches without making contact with him. Unfortunately, Peter falls backward and hits his head, sustaining a serious injury. The driver panics and speeds off. Incredibly, there are no witnesses who actually saw the vehicle almost run Peter over.

These scenarios are examples of “phantom vehicle” car accidents. Under Washington law, insurance companies are required to provide UIM coverage for car accidents involving phantom vehicles. However, insurance companies are permitted to include certain requirements that must be met before UIM coverage may be provided for phantom vehicle accidents. These include:

(a) The facts of the accident can be corroborated by competent evidence other than the testimony of the insured or any person having an underinsured motorist claim resulting from the accident; and
(b) The accident has been reported to the appropriate law enforcement agency within seventy-two hours of the accident. RCW 48.22.030 (8)(a)-(b).

Reporting the accident to law enforcement within 72 hours is a given. What is less obvious is what constitutes “competent evidence” necessary to corroborate the facts of the accident.

When it comes to “competent evidence”, Washington courts have followed the language of the statute cited above and allowed testimony from someone other than the injured party making the claim for UIM benefits. This can include passengers of the injured driver’s vehicle, so long as the persons proving the corroborating testimony are not making a UIM claim or stand to benefit from the claim against the same insurance company at the time they provide their sworn testimony. Gerken v. Mut. of Enumclaw Ins. Co., 74 Wn. App. 220, 225, 872 P.2d 1108, (1994). In other words, a disinterested witness can corroborate the facts of the accident in support of a phantom vehicle UIM claim.

But what happens when there are no disinterested witnesses to back-up the policyholder’s story? Fortunately, competent evidence can also include photographs of property damage and the accident scene, such as skid marks or other evidence indicating emergency maneuvers by the vehicles involved in the accident. And, in the age of tech, surveillance and data collection are ubiquitous. Many intersections and roadways are now equipped with traffic cameras. Video footage from these cameras, if available, is extremely helpful to prove the facts of a phantom vehicle accident. Security camera footage from businesses surrounding the location of the accident can also provide the necessary proof. Even a Ring doorbell camera may capture the accident, providing “competent evidence.”

In addition, most newer vehicles come stocked with an event data recorder (EDR) or “black box.” An EDR can record details about an accident that may be helpful in providing competent evidence to support a phantom vehicle claim. Details such as vehicle speed, acceleration, brake application and anti-lock brake activation, steering, before, during, and after an accident may be recorded by a vehicle’s EDR.

Conclusion

If you have been injured by a phantom vehicle it is imperative to report the accident to law enforcement as soon as possible, but no later than 72 hours after the crash. You should contact a lawyer to represent you and ensure all of the evidence and/or witness statements needed to obtain coverage for your phantom vehicle UIM claim is preserved and obtained.

At Axion Law Group, we have significant experience handling underinsured motorist and phantom vehicle claims. If you have been injured in a collision involving an uninsured or underinsured driver, contact us to discuss your potential case.