You're driving in the right-hand lane, and there’s a pickup truck a little bit ahead of you in the left lane. You're going normal speed, it's a nice day, there doesn't seem to be any reason to be concerned. That is, until the pickup, apparently not seeing you, starts coming over into your lane without anywhere near enough room. To avoid a collision, you swerve to the side and go off the road, hitting a tree and totaling your car.
You've just been involved in a no-contact accident. Your vehicle never touched the pickup, but the other driver still managed to total your car (or cause you to total it). You probably didn't get his license plate, so you can't sue him. Your insurance company may blame you and refuse to pay. What do you do in this tough situation?
The bad news is that unless you got some identifying information about the other vehicle, you won't really be able to haul the other driver into court. But the insurance industry and the legal system are both used to this kind of situation, and they even have a term for it -- a phantom driver. It's now an issue between you and the insurance company.
A phantom vehicle should fall under the uninsured motorist coverage that most states require an auto insurance policy to contain. After all, they don’t come much more uninsured than the people you can’t bring into court. Ultimately, coverage is going to come down to three related questions:
These questions are all related because the most litigated issue in a no-contact accident case, by far, is the common requirement in many insurance policies that there be corroborating evidence -- usually another witness -- before the victim of a no-contact accident can recover. The corroborating witness can be another person involved in the accident, a passerby, or another motorist who observed the incident.
If the policy does require a corroborating witness, you may have to be careful about just who that witness is. In some states, such as Ohio, the courts enforcing this clause require that the corroborating witness be an independent third party. This requirement can be strictly enforced. There have been cases where the only corroborating witness was a spouse of the injured driver, and the court found those witnesses not to be independent enough to qualify. In these states, if you have a coworker, friend, or other family member with you at the time of the accident, that person would likely be considered an independent third-party witness -- your husband or wife may not be.
If you do not have a corroborating witness, your state’s laws may bail you out. Most states require insurers to include coverage for underinsured or uninsured drivers so that the victim of an accident won’t be ruined by another motorist’s irresponsibility. Given that this coverage is a money loser for the insurance companies, it’s probably not surprising that they tend to follow the minimum requirements of the law and no more. This means that it is very important to understand what your state’s uninsured/underinsured motorist law actually requires, and what your state’s courts have read into those laws. Some states have a requirement that there be either physical contact with the unknown driver’s vehicle, or else one of those all-important corroborating witnesses.
The bad news is that the majority of states either have it in the law that a corroborating witness is required to trigger uninsured/underinsured coverage or, in the absence of specific language, the courts defer to the requirements in the insurance policy. A few states have stood up and declared that, where the law is silent, public policy prohibits the insurance company from creating new requirements.
(To learn more about these different types of car insurance coverage, check out Uninsured Motorist Car Insurance Coverage: The Basics and Underinsured Motorist Coverage: How It Works.)
If you’ve been involved in a no-contact car accident, your insurance company may very well not be willing to help you. To protect your legal rights and make sure that you are not the one to bear the financial burden of the accident, it may in your best interest to consult an experienced attorney.