Georgia Appeals Court Reinstates “Phantom Driver” Lawsuit

What happens when you get in an automobile accident where the other driver is never identified? If you have uninsured motorist coverage, your insurer should cover the damages. Georgia law defines a vehicle as uninsured when “the owner or operator of the motor vehicle is unknown.” But there must be adequate proof an accident occurred. This was the subject of a recent Georgia Court of Appeals decision, which illustrates the legal burden of proof in these so-called “phantom driver” cases.

Leslie v. Doe

The plaintiff in this case was driving down Highway 138 near a shopping center in Fulton County. He lost control of his vehicle when he swerved to avoid an unidentified vehicle that had just pulled out of the shopping center’s parking lot. The sudden swerving caused the driver to lose control of his vehicle, which flipped over several times and crashed. The other vehicle continued without stopping and was never identified.

The plaintiff then sued the unknown driver–i.e., a John Doe–in order to recover against his insurance policy’s uninsured motorist coverage. Since, obviously, nobody knew who John Doe was, the lawsuit was actually served on the plaintiff’s uninsured motorist carrier. The insurance company contested the lawsuit.

In order to recover against the insurance company, Georgia law requires the plaintiff to prove that there was physical contact between his vehicle and the one driven by John Doe. There was no such evidence here. Alternatively, the plaintiff can produce eyewitness testimony from someone other than himself. There was such an eyewitness, another person who was present in the shopping center parking lot at the time of the accident. In a sworn affidavit, the witness described the unidentified car pulling out of the parking lot, cutting off the plaintiff’s car, and the plaintiff subsequently losing control of his vehicle. However, at a deposition two months later, the eyewitness was less certain of his recollection. He wasn’t sure whether the unidentified vehicle caused the accident. The witness also acknowledged he knew the plaintiff, who was dating his wife’s sister.

The trial court granted summary judgment in favor of John Doe (and thus the insurance company). The judge cited the eyewitness’ contradictory testimony, plus the fact his deposition was a photocopy submitted to the court rather than the original. The Court of Appeals, however, reversed the summary judgment decision and returned the case for trial. The appeals court said the trial judge erred in rejecting the photocopied affidavit; such “secondary evidence” is admissible unless the other party objects, which the insurance company (acting for John Doe) did not do here. And while the eyewitness’ affidavit and deposition statements may conflict, neither his “credibility nor his contradictions” are the proper subject of a summary judgment order. The important thing is that he gave some testimony verifying the plaintiff’s account of the accident. It is for a jury to decide whether or not to believe the witness.

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