MILLER v. DOE
2/7/1994
This is an appeal of a personal injury action to determine liability and damages for injuries arising out of an automobile accident involving an unknown motorist.
FACTS
The respondent was a passenger in a vehicle owned and operated by Mary Miller. The two were involved in a non-contact accident with an unknown vehicle operated by an unidentified driver. Respondent claims that the unknown driver failed to dim his lights thus temporarily blinding Mary Miller and causing her to lose control of her car and run off of the road. Respondent and Mary were the only witnesses to the accident.
Respondent sought recovery for her injuries sustained in the accident from Mary's insurer, State Auto Property and Casualty Insurance Company. The parties arrived at an
If the owner or operator of any motor vehicle which
causes bodily injury or property damage to the insured
is unknown, there is no right of action or recovery
under the uninsured motorist provision, unless:
(1) the insured or someone in his behalf has
reported the accident to some appropriate police
authority within a reasonable time, under all the
circumstances, after its occurrence;
(2) the injury or damage was caused by
physical contact with the unknown vehicle, or
the accident must have been witnessed by
someone other than the owner or operator of
the insured vehicle; provided however, the
witness must sign an affidavit attesting to
the truth of the facts of the accident
contained in the affidavit;
(3) the insured was not negligent in failing
to determine the identity of the other
vehicle and the driver of the other vehicle
at the time of the accident.
(Emphasis added).
The parties agreed to submit the sole legal issue to the trial court on Stipulations of Fact and memoranda. The trial court found that respondent had a right to recover uninsured motorist coverage benefits under § 38-77-170 and was entitled to the payment of $7,500 from the insurer. This appeal follows.
DISCUSSION
An insured cannot recover uninsured motorist coverage unless the three conditions under § 38-77-170 are met. John Doe, represented by Mary Miller's insurer, contends that the second requisite condition has not been met. Specifically, since there was no physical contact involved in the accident, the attesting witness requirement has not been met. Appellant asserts that the respondent cannot be her own witness because she has a vested interest in the outcome. Appellant urges that the legislature intended that an attesting witness be an independent, disinterested witness to the accident. Furthermore, appellant argues that allowing an injured passenger to be her
Respondent argues that under the clear language of § 38-77-170, the only persons excluded from acting as attesting witnesses are the owner or operator of the insured vehicle. Respondent asserts that since she was neither the owner or the operator, she should not be excluded from acting as a witness. The trial court agreed with respondent.
Appellant cites Chestnut v. South Carolina Farm Bureau Mutual Ins., 298 S.C. 151, 378 S.E.2d 613 (Ct.App. 1989) and Wassau Underwriters Ins. Co. v. Howser, ___ S.C. ___, 422 S.E.2d 106 (1992) to support his contention that the witness must be an independent person. While in both cases the Courts used the term "independent witness", neither case addresses the question of whether an injured passenger can be an attesting witness.
The statutory language is plain and clear. There is no statutory requirement that the witness be a pe
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