Law Offices of Cheney and Cheney, P.C.

130 South Main Street, Reidsville, GA 30453
(912) 557-4768


The Phantom Driver Problem

by Van Cheney

What happens when you get in an automobile accident where the other driver is never identified? If you have uninsured motorist coverage, which has been discussed in this forum previously, your insurer should cover the damages. Georgia law defines a vehicle as uninsured when “the owner or operator of the motor vehicle is unknown.” However, there must be adequate corroboration that an accident occurred. The question of the adequacy of evidence was recently the subject of a recent Georgia Court of Appeals decision, which illustrated the legal burden of proof in these so-called “phantom driver” cases.

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, 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 alleging that plaintiff could not provide the requisite evidence to corroborate that John Doe’s actions caused the accident.

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, or alternatively, that he produce eyewitness testimony from someone other than himself. There was no contact between the two vehicles in this case and thus plaintiff had to produce evidence of how the accident occurred.  There was an eyewitness in this case, 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, the eyewitness was less certain of his recollection. He was not 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 as partial basis for the decision. The Court of Appeals, however, reversed the summary judgment decision and returned the case for trial. The appeals court held that 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. The court made clear that it is a jury’s duty, not the judge’s, to decide whether or not to believe the witness.

The foregoing presents an example of one of the issues that may arise in a personal injury case.  If you feel you may have a personal injury claim, it is advisable that you contact an attorney experienced in the subject matter sooner, rather than later.

Van Cheney is a partner in Cheney & Cheney, P.C., a general practice firm in Reidsville, Georgia that specializes in personal injury, workers’ compensation, and social security.