JUDGE GARY L. JOHNSON, sitting by special assignment, delivered the Opinion of the
JUSTICE SCOTT did not participate in the decision of the Court.
1. The uninsured motorist statute, West Virginia Code § 33-6-31 (Supp.
1986), is remedial in nature and, therefore, must be construed liberally in order to effect its
purpose. Syl. Pt. 7, Perkins v. Doe, 177 W.Va. 84, 350 S.E.2d 711 (1986).
2. In order to satisfy the 'physical contact' requirement set forth in W.Va.
Code § 33-6-31(e)(iii), it is necessary to establish a close and substantial physical nexus
between an unidentified hit-and-run vehicle and the insured vehicle. Syl. Pt. 2, in part,
State Farm Mut. Auto. Ins. Co. v. Norman, 191 W.Va. 498, 446 S.E.2d 720 (1994).
3. A close and substantial physical nexus exists between an unidentified hit-and-run vehicle and the insured for uninsured motorist insurance coverage under W.Va. Code § 33-6-31(e)(iii) when an insured can establish by independent third-party evidence to the satisfaction of the trial judge and the jury, that but for the immediate evasive action of the insured, direct physical contact would have occurred between the unknown vehicle and the victim. Syl. Pt. 3, Hamric v. Doe, 201 W.Va. 615, 499 S.E.2d 619 (1997).
4. The 'but for' test is satisfied and the uninsured motorist claim can go
forward only if the injured insured presents independent third-party testimony by
disinterested individuals which clearly shows the negligence of an unidentified vehicle was
a proximate cause of the accident. Syl. Pt. 4, Hamric v. Doe, 201 W.Va. 615, 499 S.E.2d
5. We extend our holding in syllabus point three of Hamrick v. Doe, 201
W.Va. 615, 499 S.E.2d 619 (1997), to rule that
a close and substantial physical nexus
between an unidentified hit-and-run vehicle and the insured vehicle sufficient to fulfill the
physical contact requirement of West Virginia Code § 33-6-31(e)(iii) (Supp. 1999) exists
when an insured can establish by independent third-party evidence
that, as a result of the
immediate evasive action of a third-party taken to avoid direct physical contact with an
unknown vehicle, contact between the third-party's vehicle and the insured's vehicle
This case arises by certified questions from the Circuit Court of Ohio County and presents issues concerning this Court's decision in Hamric v. Doe, 201 W.Va. 615, 499 S.E.2d 619 (1997). Modifying our prior law, which permitted recovery of uninsured motorist benefits only when an insured could prove that his/her injuries were the result of actual physical contact with a hit-and-run vehicle, we ruled in Hamrick that uninsured motorist benefits are recoverable even in the absence of physical contact provided independent third- party evidence establishes that direct physical contact would have occurred between the unknown vehicle and the insured but for the evasive action taken by the insured . By order dated September 28, 1998, the circuit court certified the following two questions to this Court:
1. Does the Hamric exception to the physical contact requirement for uninsured motorist coverage under W. Va. Code § 33-6-31(e)(iii) (1995) extend to an accident where the insured's vehicle is struck by another insured vehicle whose operator alleges he took evasive action to avoid physical contact with an unknown unidentified vehicle?
2. Is the operator of an insured vehicle which collided with the injured insured's vehicle a disinterested witness whose testimony satisfies the corroborative evidence test to allow the insured's uninsured motorist claim against the unknown unidentified vehicle to proceed[?]
Upon our review of these issues, we determine that the first question should be answered in
the affirmative and the second one, in the negative.See footnote 1
As a result of the accident, Mr. Dunn sustained broken ribs, a pneumothorax,
and blood clots in his leg. After initiating suit against Mr. Mace in Pennsylvania,See footnote 2
Mrs. DunnSee footnote 3
filed a civil action in West Virginia against Allstate Insurance Company
(Allstate).See footnote 4
In the West Virginia proceeding, the Dunns sought payment of uninsured and
underinsured motorist benefits on a policy issued to them, as well as damages for statutory
bad faithSee footnote 5
with regard to Allstate's failure to pay benefits on this policy. Allstate then sought
a declaratory judgment from the circuit court as to its obligations to pay uninsured and
underinsuredSee footnote 6
motorist benefits to the Dunns. After cross-motions for summary judgment
were filed, the circuit court certified the above-stated questions to this Court for resolution.
Emphasizing our firm commitment to the underlying objective of the physical
contact requirement--the prevention of fraud or collusion--we adopted the rationale
articulated in Girgis v. State Farm Mutual Automobile Insurance Co., 662 N.E.2d 280 (Ohio
1996), and determined that:
absolute enforcement of the physical contact requirement is contrary to public policy. We believe the physical contact requirement should not bar recovery when there is sufficient independent third-party evidence to conclusively establish that the sequence of events leading to an injury was initially set in motion by an unknown hit-and-run driver or vehicle.
Hamric, 201 W.Va. at 620, 499 S.E.2d at 624. Incorporating this policy into our jurisprudence, we held in syllabus points three and four of Hamric that:
A close and substantial physical nexus exists between an unidentified hit-and-run vehicle and the insured for uninsured motorist insurance coverage under W.Va.Code § 33-6-31(e)(iii) when an insured can establish by independent third-party evidence to the satisfaction of the trial judge and the jury, that but for the immediate evasive action of the insured, direct physical contact would have occurred between the unknown vehicle and the victim.
The "but for" test is satisfied and the uninsured motorist claim can go forward only if the injured insured presents independent third-party testimony by disinterested individuals which clearly shows the negligence of an unidentified vehicle was a proximate cause of the accident.
201 W.Va. at 616, 499 S.E.2d at 620.
Allstate argues that the exception to the physical contact rule that was created
in Hamric is one that must be narrowly construed to only apply when the insured is the entity
that took the evasive action necessary to avoid contact with the unidentified car. In contrast
to Hamric where the evasive action was taken by the insured, Mr. Mace is the person who
allegedly took evasive action in the case at bar. There is no dispute concerning the fact that
Mr. Dunn never took any evasive action to avoid the accident that occurred. Based on a strict
interpretation of Hamric, Allstate maintains that the absence of evasive action taken by the
insured prevents application of the physical contact exception. Allstate contends
additionally that the public policy considerations that were present in Hamric are noticeably
absent in this case. Whereas adherence to the physical contact requirement in Hamric
would have deprived the insured of her only avenue of recovery since her injuries were the
result of one unknown hit-and-run vehicle, Mr. Dunn has multiple methods of recovery.See footnote 9
Consequently, the public policy considerations that supported the Hamric decision are not
present in this case.
Responding to Allstate's arguments, Mr. Dunn contends that, rather than being
limited to single vehicle accidents, the Hamric holding applies whenever a John Doe vehicle
initiates an accident sequence. According to Mr. Dunn, whether the insured or another driver
had to take evasive action to avoid a collision is irrelevant. Instead of depending on whether
evasive action was taken by the insured, the pivotal focus of Hamric is whether the
negligence of the John Doe driver is a proximate cause of the resulting accident. In support
of his position, Mr. Dunn cites the fact that Ohio courts applying Girgis, the decision upon
which this Court relied in Hamric, have extended Girgis to factual scenarios where the
actions of the John Doe vehicle cause another vehicle to swerve or take evasive action which
in turn results in a collision with the insured's vehicle. See Muncy v. American Select Ins.
Co., 716 N.E.2d 1171 (Ohio Ct. App. 1998) (reversing grant of summary judgment to
insurer, finding genuine issue of material fact as to whether wood pallet in road dropped by
John Doe vehicle caused decedent insured to lose control and collide with another vehicle
which caused insured's death due to resulting fire); Kim v. State Farm Mut. Auto. Ins. Co.,
1996 WL 729876 (Ohio Ct. App. 1996) (reversing grant of summary judgment to insurer, in
light of issuance of Girgis, where unknown driver allegedly caused driver of vehicle to
collide with insured's vehicle); see also Lovelady v. Alfa Mut. Ins. Co., 503 S.E.2d 349 (Ga.
Ct. App. 1998) (applying uninsured motorist statute to accident where John Doe vehicle
allegedly caused tractor-trailer driver to swerve and collide with insured's vehicle). As to
Allstate's argument that the policy considerations present in Hamric are lacking in this case,
Mr. Dunn states simply that this Court did not make the absence of a source of recovery the
basis for its holding in that case.
After weighing the arguments presented on both sides of this issue, we find the
position advocated by Mr. Dunn to be both compelling and persuasive. Although our holding
in Hamric was stated in terms of the insured taking evasive action to avoid physical contact
with the John Doe vehicle, the single vehicular nature of that case readily explains the
phraseology employed in that case. While we did not have under consideration facts such
as those present in the instant case, there is nothing in the logic employed in Hamric which
would suggest that we not extend our ruling in that case to cover the scenario presented by
this case. The pivotal concern, as correctly identified by Mr. Dunn, is whether the John Doe
vehicle sets in motion a sequence of events that is found to have proximately caused the
accident for which uninsured motorist benefits are being sought. See Hamrick, 201 W.Va.
at 620, 499 S.E.2d at 624. Accordingly, we extend our holding in syllabus point three of
Hamrick v. Doe, 201 W.Va. 615, 499 S.E.2d 619 (1997), to rule that
a close and substantial
physical nexus between an unidentified hit-and-run vehicle and the insured vehicle sufficient
to fulfill the physical contact requirement of West Virginia Code § 33-6-31(e)(iii) (Supp.
1999) exists when an insured can establish by independent third-party evidence
that, as a
result of the immediate evasive action of a third-party taken to avoid direct physical contact
with an unknown vehicle, contact between the third-party's vehicle and the insured's vehicle
Allstate argues that the circuit court wrongly determined that Mr. Mace is a
disinterested witness whose testimony satisfies the parameters of Hamric's corroborative
evidence test. Mr. Mace, according to Allstate, cannot qualify as an independent third party
since he was a named defendant in a separate action arising from the accident. Allstate
suggests that by shifting liability to the unknown Joe Doe driver, Mr. Mace may either reduce
or eliminate his liability for the accident. In so doing, Mr. Mace could affect the amount of
any excess judgment or even insulate himself from a surcharge with regard to his own
automobile insurance premiums. Allstate maintains that Mr. Mace utterly fails to meet the
high standard set by this Court in Hamric which demands that the testimony of the
corroborative witness must be absolutely and totally independent and reliable. 201 W.Va.
at 621, 499 S.E.2d at 625.
Conversely, Mr. Dunn advocates that Mr. Mace is a disinterested witness within the confines of Hamric. In support of his position,See footnote 10 10 Mr. Dunn states that Mr. Mace has no direct pecuniary interest in the outcome of this case. Since his insurer is providing a defense, he is not incurring any personal expenses or fees. Any benefit in the way of avoiding an insurance premium surcharge or increase is an indirect benefit that was not addressed by the guidelines delineated in Hamric. Finally, Mr. Dunn argues that because his interests are not antagonistic to those of Mr. Mace, there is clearly no incentive for the two of them to engage in collusion.
What Mr. Dunn overlooks in making his arguments is the fact that the corroborative evidence test is aimed at fraud as well as collusion. See Hamric, 201 W.Va. at 619-21, 499 S.E.2d at 623-25. Even assuming the veracity of Mr. Dunn's profession of no collusion, Mr. Dunn cannot attest to whether Mr. Mace has made fraudulent statements with regard to the accident. The facts of this case easily demonstrate why a disinterested third-party is required to permit application of the Hamric exception. No one but Mr. Mace has testified that a John Doe vehicle crossed the center line and set the events in motion that led to the collision between the Mace and Dunn vehicles. Mr. Dunn testified that he did not believe that there was any other vehicle involved in the accident and that a John Doe vehicle was not a proximate cause of the accident. Although he was aware that there was a blue pickup truckSee footnote 11 11 ahead of him, Mr. Dunn testified that he did not observe the truck weaving, entering the oncoming lane of traffic in which Mr. Mace was driving, or causing Mr. Mace to lose control of his vehicle. Mr. Dunn testified that Mr. Mace's version of the facts did not make any sense to him. The investigating officer, Trooper Reda, found Mr. Mace's claim of a John Doe vehicle suspect. When deposed, Trooper Reda stated that he believed Mr. Mace had not properly maintained control of his vehicle under the road conditions. Trooper Reda also observed that there was no independent evidence to substantiate Mr. Mace's allegations regarding the John Doe vehicle and concluded that the John Doe vehicle did not play a part in the accident.
We were clear in Hamric that [i]t would be impossible to say in advance what
might constitute sufficient corroborative evidence in a given case. 201 W.Va. at 620, 499
S.E.2d at 624. Thus, the fact that Mr. Mace may not fit squarely into one of the designated
categories of individuals who does not qualify as a disinterested third-party is not dispositive
of the issue. Only when the facts of a given case are closely scrutinized, can a determination
be made as to whether the witness can qualify as both independent and disinterested. Upon
careful consideration of the facts of this case, we cannot conclude that Mr. Mace fits the
definition of a disinterested, independent third-party witness within the meaning of Hamric.
Simply put, Mr. Mace's role in the accident prevents us from viewing him as a witness
capable of proffering evidence that is simultaneously free of taint or suspicion and strong
and reliable. Id. at 621, 499 S.E.2d at 625.
Having answered the questions certified to this Court, this action is hereby dismissed from the docket of this Court.
Certified questions answered.