Girgis v. State Farm Mutual Automobile Insurance

[This opinion has been published in Ohio Official Reports at 

75 Ohio St.3d 302

.]




    GIRGIS, APPELLANT, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE
                                 COMPANY, APPELLEE.
       [Cite as Girgis v. State Farm Mut. Auto. Ins. Co., 

1996-Ohio-111

.]
Insurance—Uninsured motorist provision—R.C. 3937.18 and public policy
        preclude contract provision requiring physical contact for recovery—Test
        applied in cases where unidentified driver’s negligence causes injury is
        the corroborative evidence test.
1. R.C. 3937.18 and public policy preclude contract provisions in insurance policies
        from requiring physical contact as an absolute prerequisite to recovery
        under the uninsured motorist coverage provision.
2. The test to be applied in cases where an unidentified driver’s negligence causes
        injury is the corroborative evidence test, which allows the claim to go
        forward if there is independent third party testimony that the negligence of
        an unidentified vehicle was a proximate cause of the accident (Travelers
        Indemn. Co. v. Reddick [1974], 

37 Ohio St.2d 119

, 

66 O.O.2d 259

, 

308 N.E.2d 454

; Yurista v. Nationwide Mut. Ins. Co. [1985], 

18 Ohio St.3d 326

,
        18 OBR 370, 

481 N.E.2d 584

; State Auto. Mut. Ins. Co. v. Rowe [1986], 

28 Ohio St.3d 143

, 28 OBR 238, 

502 N.E.2d 1008

, modified.)
        (No. 94-2765—Submitted January 10, 1996—Decided March 6, 1996.)
        CERTIFIED by the Court of Appeals for Cuyahoga County, No. 66970.
                                  __________________
        {¶ 1} Appellee, Salwa Girgis, alleges that on November 3, 1987, she was
traveling on Interstate 90 in Cleveland when another vehicle driven by an
unidentified individual swerved into her lane and struck the left front fender of her
car. Girgis lost control of her vehicle which overturned, causing personal injury to
                              SUPREME COURT OF OHIO




Girgis. It was stipulatead that Girgis was in fact involved in a motor vehicle
accident.
        {¶ 2} Girgis had an insurance policy with appellant, State Farm Mutual
Automobile Insurance Company. The policy included uninsured motorist coverage
which stated:
        “We [State Farm] will pay damages for bodily injury an insured is legally
entitled to collect from the owner or driver of an uninsured motor vehicle. The
bodily injury must be caused by accident arising out of the operation, maintenance
or use of an uninsured motor vehicle. Uninsured Motor Vehicle—means: *** 2. a
(hit and run) land motor vehicle whose owner or driver remains unknown and which
strikes: a. the insured or b. the vehicle the insured is occupying and causes bodily
injury to the insured.”
        {¶ 3} Girgis filed a claim under the uninsured motorist provision of her
insurance policy to recover for the subject accident. State Farm denied coverage
based on its determination that there had been no physical contact between Girgis’s
vehicle and any other vehicle. Consequently, State Farm concluded that there was
no “‘hit and run’ land motor vehicle” as defined by the insurance contract, and State
Farm was not obligated to pay the claim.
        {¶ 4} Girgis filed a complaint for declaratory judgment against State Farm
on or about July 2, 1992 claiming the trial court should declare the “physical
contact” requirement of the uninsured motorist provision to be invalid and
unenforceable.       Among other arguments Girgis cited State Farm Ins. Co. v.
Alexander (1992), 

62 Ohio St.3d 397

, 

583 N.E.2d 309

. The trial court granted the
motion and entered judgment for Girgis. The court of appeals affirmed this
decision and certified its decision as being in conflict with August v. Lightning Rod
Mut. Ins. Co. (1992), 

82 Ohio App.3d 25

, 

610 N.E.2d 1180

.
        {¶ 5} The cause is now before this court pursuant to the determination that
a conflict exists.




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                               January Term, 1996




                              __________________
       Dubyak & Goldense Co., L.P.A., David W. Goldense and Paul V. Wolf, for
appellee.
       Henry A. Hentemann and Joseph H. Wantz, for appellant.
       Clark, Perdue, Roberts & Scott, Dale K. Perdue and Glen R. Pritchard,
urging affirmance for amicus curiae, The Ohio Academy of Trial Lawyers.
                              __________________
             WRIGHT, J.
       {¶ 6} Today we again confront a situation involving an individual who
suffered personal injuries in an automobile accident, allegedly at the hands of an
unidentified driver who left the scene of the accident. See Travelers Indemnity Co.
v. Reddick (1974), 

37 Ohio St.2d 119

, 

66 O.O.2d 259

, 

308 N.E.2d 454

; Yurista v.
Nationwide Mut. Ins. Co. (1985), 

18 Ohio St.3d 326

, 18 OBR 370, 

481 N.E.2d 584

;
State Auto. Mut. Ins. Co. v. Rowe (1986), 

28 Ohio St.3d 143

, 28 OBR 238, 

502 N.E.2d 1008

. In these cases we upheld the validity of insurance contracts that
required physical contact as an absolute standard for recovery under the uninsured
motorist coverage of the insurance policy. Invariably, this meant that the injured
party could not recover.
       {¶ 7} In Reddick, two automobiles collided after one of them swerved to
avoid an accident with a third unidentified vehicle. There were no witnesses to the
incident other than the drivers of the two vehicles that collided. Reddick, 

37 Ohio St.2d at 119

, 

66 O.O.2d at 259

, 

308 N.E.2d at 454-455

. Yurista consisted of two
companion cases. In the first, Robert Yurista was injured when his motorcycle
struck a railroad tie that was in the road. There were no witnesses to the accident,
although a police investigation revealed that the railroad tie had been dragged into
the road “‘by a car which made a too sharp right hand turn.’” The plaintiff in the
other case, James Basford, was injured by a bottle thrown from an unidentified
vehicle. There appears to be at least one witness to this event. Yurista, 

18 Ohio 3

                            SUPREME COURT OF OHIO




St.3d 327-328, 18 OBR at 371-372, 

481 N.E.2d at 585-586

. In Rowe, Carolyn
Rowe and Peter Stefanisn were injured when the vehicle in which they were
passengers was struck by a car that had swerved to avoid a third, unidentified
vehicle. Rowe, 

28 Ohio St.3d at 143

, 28 OBR at 238, 

502 N.E.2d at 1008

.
       {¶ 8} The plaintiffs in each of these cases were injured as a proximate result
of the alleged negligence of an unidentified person in an unidentified vehicle. Each
injured party filed a claim seeking recovery under the uninsured motorist coverage
of their insurance policies. In each case, the claim was denied because there had
been no physical contact between either the person or the vehicle of the injured
party and the unidentified vehicle which allegedly caused the accident. Each of the
ensuing actions reached this court where we found the contract provision of the
insurance policy requiring a physical contact as a prerequisite to recovery to be
valid. The facts in the case before us require us to reexamine these cases,
considering the views of our sister states and review the public policy underlying
the physical contact requirement.
       {¶ 9} The precise issue before us is whether an automobile insurance policy
requiring actual physical contact between the unidentified vehicle and either the
insured or the insured’s vehicle as an absolute prerequisite to recovery comports
with public policy. For the reasons that follow, we find that the physical contact
requirement is contrary to public policy. We are persuaded that some of the
rationale underlying the physical contact requirement is unjustified and that this
absolute standard for recovery should be abandoned. Instead, we hold that the test
that ought to be applied in cases where an unidentified driver’s negligence causes
injury is the corroborative evidence test, which allows the claim to go forward if
there is independent third party testimony that the negligence of an unidentified




                                         4
                                     January Term, 1996




vehicle was a proximate cause of the accident. In taking this step, we join a number
of our sister states that have adopted this or an even stricter rule.1
         {¶ 10} R.C. 3937.18, the statutory provision that requires insurance
companies to offer uninsured motorist coverage, does not specifically address the
issue before us.2 It stated, at the time pertinent herein:
               “(A) No automobile liability or motor vehicle liability policy of
insurance *** shall be delivered or issued for delivery in this state *** unless both
of the following are provided:
               “(1) Uninsured motorist coverage, which *** shall provide *** for the
protection of persons insured thereunder who are legally entitled to recover
damages from owners or operators of uninsured motor vehicles ***;
               “(2) Underinsured motorist coverage ***.” (141 Ohio Laws, Part I,
535.)
         {¶ 11} It has been the practice of insurance companies to provide coverage
for     “hit and run” accidents, even though that coverage is not required by
R.C.3937.18. Such policy provisions have historically been restricted to “hit and
run” accidents where a physical contact occurred between the person or vehicle of
the insured and the “hit and run” vehicle. See Reddick (

37 Ohio St.2d 119

); Yurista



1. Surrey v. Lumbermens Mut. Cas. Co. (1981), 

384 Mass. 171

, 

424 N.E.2d 234

; State Farm Fire
& Cas. Co. v. Lambert (1973), 

291 Ala. 645

, 

285 So.2d 917

; Farmers Ins. Exchange v. McDermott
(1974), 

34 Colo.App. 305

, 

527 P.2d 918

; State Farm Mut. Auto. Ins. Co. v. Abramowicz (Del. 1978),

386 A.2d 670

; Brown v. Progressive Mut. Ins. Co. (Fla. 1971), 

249 So.2d 429

; DeMello v. First Ins.
Co. of Hawaii (1974), 

55 Haw. 519

, 

523 P.2d 304

; Simpson v. Farmers Ins. Co. (1979), 

225 Kan. 508

, 

592 P.2d 445

; Halseth v. State Farm Mut. Auto. Ins. Co. (Minn. 1978), 

268 N.W.2d 730

;
Commercial Union Assur. Co. v. Kaplan (1977), 

152 N.J.Super. 273

, 

377 A.2d 957

; Montoya v.
Dairyland Ins. Co. (D.N.M. 1975), 

394 F.Supp. 1337

; Biggs v. State Farm Mut. Ins. Co. (Okla.
1977), 

569 P.2d 430

; Farmers Ins. Exchange v. Colton (1972), 

264 Ore. 210

, 

504 P.2d 1041

; Webb
v. United Services Auto. Assn. (1974), 

227 Pa.Super. 508

, 

323 A.2d 737

; Clark v. Regent Ins. Co.
(S.D. 1978), 

270 N.W.2d 26

; Doe v. Brown (1977), 

203 Va. 508

, 

125 S.E.2d 159

; Maurer v. Grange
Ins. Assn. (1977), 

18 Wash.App. 197

, 

567 P.2d 253

.

2. It should be noted that the statute does not require consumers to purchase uninsured motorist
coverage.




                                                    5
                              SUPREME COURT OF OHIO




(

18 Ohio St.3d 326

); Rowe (

28 Ohio St.3d 143

). Since R.C. 3937.18 neither
requires nor prohibits insurance coverage for “hit and run” accidents, we have
analyzed insurance policies providing “hit and run” coverage under the rules of
contract law. Accordingly, we have and will enforce the terms of insurance
contracts absent compelling public policy reasons to the contrary.
       {¶ 12} As we stated in Reddick, “The purpose of the [physical contact]
requirement is obvious--to provide an objective standard of corroboration of the
existence of a ‘hit-and-run’ vehicle to prevent the filing of fraudulent claims.” 

37 Ohio St.2d at 124

, 

66 O.O.2d at 262

, 

308 N.E.2d at 457

. While objective standards
have the advantage of being easy to apply, their application does not always do
justice to injured claimants. Thus, because we remain committed to the underlying
policy of preventing fraud, we adopt the corroborative evidence rule which prevents
fraud and avoids the injustice of prohibiting legitimate claims solely because no
physical contact occurred.
       {¶ 13} Adherence to the physical contact requirement effectively deprives
insured individuals of any recovery under uninsured motorist coverage even when
independent third-party testimony is available. It strikes us that this is precisely the
sort of situation against which uninsured motorist coverage was designed to protect.
See Reddick, 

37 Ohio St.2d at 123

, 

66 O.O.2d at 261-262

, 

308 N.E.2d at 457

; Abate
v. Pioneer Mut. Cas. Co. (1970), 

22 Ohio St.2d 161, 165

, 

51 O.O.2d 229, 231

, 

258 N.E.2d 429, 432

; Watson v. Grange Mut. Cas. Co. (1988), 

40 Ohio St.3d 195

, 196-
197, 

532 N.E.2d 758, 759

. We also note that R.C. 3937.18 will be “construed
liberally in order to effectuate the legislative purpose that coverage be provided to
persons who are injured through the acts of uninsured motorists.” Reddick, 

37 Ohio St.2d at 123

, 

66 O.O.2d at 262

, 

308 N.E.2d at 457

, citing Curran v. State Auto Mut.
Ins. Co. (1971), 

25 Ohio St.2d 33

, 

54 O.O.2d 166

, 

266 N.E.2d 566

.
       {¶ 14} Thus, to the extent that admissible corroborative evidence was
available, we modify Reddick, Yurista and Rowe, and find that R.C. 3937.18 and




                                           6
                                   January Term, 1996




public policy preclude contract provisions in insurance policies from requiring
physical contact as an absolute prerequisite to recovery under the uninsured
motorist coverage provision. We believe that public policy considerations should
and do require the substitution of the corroborative evidence test for the physical
contact requirement. This will ameliorate the harsh effect of an irrebuttable
presumption and allow an insured to prove through independent third party
testimony that an unidentified vehicle was a proximate cause of the accident for
which the insured seeks recovery.
       {¶ 15} We do not take lightly the argument that this today’s decision will
lead to an increase in the filing of claims. However, the corroborative evidence test
we propound requires independent third-party testimony specifically to protect
insurance companies from fraud.          We consider the danger of possible fraud
acceptable compared with the current situation where insureds with legitimate
claims are prevented, as a matter of law, from recovering. Further, we are confident
that the jury system will be able to distinguish between legitimate cases and
fraudulent ones, as they do in many other matters.
       {¶ 16} We reverse the judgment of the court of appeals. Accordingly, this
cause is remanded to the trial court for further proceedings not inconsistent with
this opinion.
                                                                Judgment reversed.
DOUGLAS and RESNICK, JJ., concur.
PFEIFER, J., concurs separately.
MOYER, C.J., and COOK, J., CONCUR IN JUDGMENT.
F.E. SWEENEY, J., concurs in part and dissents in part.
                              __________________


       PFEIFER, J., concurring.




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                             SUPREME COURT OF OHIO




       {¶ 17} The majority opinion and syllabus are a good first step, but I would
go further. As I first stated in my concurrence in Hillman v. Hastings Mut. Ins. Co.
(1994), 

68 Ohio St.3d 238

, 

626 N.E.2d 73

, this court should eliminate entirely the
physical contact rule. There is no reason that a case involving an automobile
accident should be any different from any other case that depends on the testimony
of only one eyewitness. As it does in every other case, the jury should decide the
veracity of the witness and accord the testimony its due weight in light of the other
evidence presented.
                              __________________
       COOK, J., concurring in judgment.
       {¶ 18} I agree with the majority’s decision to reverse but write separately
because I find no support for the about-face the court takes in light of twenty-one
years of solid case law and legislative policy-making. There may very well be
grounds for the General Assembly to modify State Auto. Mut. Ins. Co. v. Rowe
(1986), 

28 Ohio St.3d 143

, 28 OBR 238, 

502 N.E.2d 1008

, and require insurance
companies to provide uninsured motorist coverage when an unidentified vehicle is
the proximate cause of an accident and when there is corroborative evidence.
However, that decision is not only beyond the scope of this case, but also not the
province of this court.
       {¶ 19} The majority does not cite any change in public policy or any
compelling public policy which would necessitate this court’s departure from our
previous interpretations of R.C. 3937.18 and the “hit and run” physical contact
provision. The majority appears to simply rewrite the applicable code provision.
       {¶ 20} This court has held, in a trilogy of cases, that the “hit and run”
physical contact provision is enforceable and not contrary to public policy. The
legality of this contract clause is firmly embedded in this state’s syllabus law. See
Travelers Ins. Co. v. Reddick (1974), 

37 Ohio St.2d 119

, 

66 O.O.2d 259

, 308




                                         8
                                 January Term, 

1996 N.E.2d 454

; Yurista v. Nationwide Mut. Ins. Co. (1985), 

18 Ohio St.3d 326

, 18
OBR 370, 

481 N.E.2d 584

; and State Auto. Mut. Ins. Co. v. 

Rowe, supra.

       {¶ 21} As the majority concedes, R.C. 3937.18 does not require insurance
companies to provide coverage for “hit and run” accidents. Nowhere in the
applicable statutory framework can one find a requirement that an insurer offer
uninsured motor vehicle coverage for injuries that result from the negligence of
drivers of unidentified motor vehicles.        The Reddick court stated without
equivocation that:
       “In the present case, the ‘hit and run’ coverage provided by the insurer
represents an extension of coverage beyond that required by the statute, as R.C.
3937.18 requires coverage only for injuries caused by uninsured motorists.”
(Emphasis sic.) Reddick, 

37 Ohio St.2d at 124

, 

66 O.O.2d at 262

, 

308 N.E.2d at 457

.
       {¶ 22} The Yurista decision was equally clear. Its syllabus states:
       “When the definition of an uninsured motor vehicle in an uninsured motorist
provision of an automobile liability insurance policy includes a ‘hit-and-run’
vehicle which causes bodily injury to an insured by physical contact with such
person or a vehicle he is occupying, such physical contact must occur for the ‘hit-
and-run’ inclusion to apply.”
       {¶ 23} Finally, in Rowe, this court stated in the syllabus:
       “An automobile liability insurance policy which provides coverage against
injuries caused to an insured by an unidentified motorist may, consistent with R.C.
3937.18 and public policy, include a provision requiring actual physical contact
between the insured or the vehicle occupied by him and the unidentified vehicle.”
       {¶ 24} Justice Douglas, writing for the majority, stated in the first paragraph
of his opinion in 

Rowe, supra:

       “The initial issue presented in this case is whether an uninsured motorist
liability policy clause that requires ‘physical contact’ between the insured or the




                                             9
                              SUPREME COURT OF OHIO




vehicle occupied by him and the vehicle of an unidentified motorist, as a condition
of coverage, abrogates R.C. 3937.18 or contravenes public policy. We hold that it
does not.” Rowe, 

28 Ohio St.3d at 144

, 28 OBR at 239, 

502 N.E.2d at 1010

.
        {¶ 25} We further held that R.C. 3937.18 did not require an insurance
carrier to offer coverage for insureds injured by “hit and run” motorists:
        “Given a literal reading, the terms of R.C. 3937.18 mandate only that
coverage be extended for injuries caused by identified uninsured (and underinsured)
motorists. While public policy may require that insurers provide coverage to
insureds who are injured by hit-and-run motorists, R.C. 3937.18 does not require
coverage for injuries caused by unidentified motorists. Therefore, because the
insurance policy in this case provided, in addition to the basic mandated uninsured
coverage, coverage for injuries caused by an unidentified motorist, the policy
actually provided more protection than that required by statute. The ‘physical
contact’ limitation set forth in the hit-and-run clause is, therefore, neither a violation
of R.C. 3937.18 nor of public policy.” (Emphasis added in part.) Rowe, 

28 Ohio St.3d at 145

, 28 OBR at 239-240 

502 N.E.2d at 1010

.
        {¶ 26} I believe it is worth emphasizing that neither this court nor the
General Assembly has ever equated an “unidentified” motorist with an “uninsured”
motorist. Indeed, this court expressly refused to do so in both Reddick and Rowe.
Since our holding in Reddick in 1974, R.C. 3937.18 has been amended many times,
including most recently in 1994. On any of these occasions the General Assembly
could have addressed our holding in Reddick. On each occasion it chose not to.
The appellant argues, I believe convincingly, that this absence of legislative action
indicates the General Assembly’s intent to retain the “physical contact”
requirement.
        {¶ 27} In 1994, R.C. 3937.18(A)(1) was amended to include language that
specifically clarifies that “a person is legally entitled to recover damages if he is
able to prove the elements of his claim that are necessary to recover damages from




                                           10
                                January Term, 1996




the owner or operator of the uninsured motor vehicle.” (Emphasis added.) This
statutory language lends credence to the argument that a “hit and run” accident is
not intended by the legislature to be subject to this coverage.
       {¶ 28} Because I find no reason to modify Reddick, Yurista and Rowe, I
concur in judgment only.
       MOYER, C.J., concurs in the foregoing concurring opinion.
                               __________________
       FRANCIS E. SWEENEY, SR., J., concurring in part and dissenting in part.
       {¶ 29} I strongly agree with the majority that the physical contact
requirement is contrary to public policy and R.C. 3937.18 and should be
abandoned. However, I disagree with the majority’s creation of a new requirement
that insureds seeking recovery cannot go forward with their case unless they can
present independent third-party testimony (the corroborative evidence test). I
believe this new requirement is contrary to public policy and undermines the
purpose of R.C. 3937.18 by unnecessarily increasing the plaintiff’s burden of proof,
which will create the harsh result of preventing many insureds with legitimate
claims from having any chance of recovery. The majority’s concern of potential
fraudulent claims does not outweigh the right of plaintiffs to be given the
opportunity to persuade the trier of fact that their claims are valid. Furthermore,
the genuineness of their claims can be adequately tested by our traditional adversary
process. Accordingly, I must dissent.
       {¶ 30} The majority correctly notes that R.C. 3937.18 will be “‘construed
liberally in order to effectuate the legislative purpose that coverage be provided to
persons who are injured through the acts of uninsured motorists.’” See Travelers
Indemnity Co. v. Reddick (1974) 

37 Ohio St.3d 119

, 123, 

66 O.O.2d 259, 262

, 

308 N.E.2d 454, 457

. The purpose of Ohio’s uninsured motorist statute is to place an
injured party in the same position that he or she would otherwise be if the tortfeasor
were insured. Bartlett v. Nationwide Mut. Ins. Co. (1973), 

33 Ohio St.2d 50

, 62




                                             11
                             SUPREME COURT OF OHIO




O.O.2d 406, 

294 N.E.2d 665

. However, while recognizing that uninsured motorist
coverage was designed to protect insureds, the majority then contradicts itself by
creating a new barrier to recovery, an unnecessary and unjustified requirement that
the plaintiff must provide independent third-party testimony to go forward with his
or her claim. The majority undermines the purpose of the statute by placing a much
higher burden on these insureds then is imposed on other insureds. The result of
this decision is that insureds with legitimate claims will be prohibited from
presenting their case to a trier of fact solely because no independent third-party
witnessed the accident. This is contrary to public policy and R.C. 3937.18.
       {¶ 31} Several jurisdictions have specifically rejected both the physical
contact and corroboration requirements as contrary to public policy and untenably
contrary to the legislative purpose behind uninsured motorist statutes. Keystone
Ins. Co. v. Raffile (1993), 

225 Conn. 223

, 

622 A.2d 564

; Lanzo v. State Farm Mut.
Ins. Co. (Me.1987), 

524 A.2d 47, 50

; Perez v. Am. Bankers Ins. Co. (1979), 

81 N.J. 415, 419

, 

409 A.2d 269, 271

 (imposition of the requirement of corroboration in
noncontact cases adds a substantial condition to the mandated coverage not
sanctioned by the legislature); Pin Pin H. Su v. Kemper Ins. Cos./Am. Motorists Ins.
Co. (R.I.1981), 

431 A.2d 416, 419

. These courts, in weighing the potential of
fraudulent claims with the potential loss of valid claims that cannot be corroborated
independent of the claimant’s version of the facts, have found that “the scale must
tip in favor of the claimant and that a standard requiring corroborative evidence
independent of the claimant’s testimony is not warranted.” 

Raffile, supra at 233

,

622 A.2d at 570

.      “The fact that some claims might be manufactured by
unscrupulous individuals cannot justify the wholesale rejection of all claims in
which injury is caused by an unidentified driver simply because the injured party
lacks third party witnesses or physical evidence of an unidentified driver.” 

Id.

 “[A]
corroboration requirement would accomplish little to prevent fraud if a claimant,
so inclined, would bolster his fraudulent claim with sham ‘eyewitnesses’ or




                                         12
                                 January Term, 1996




manufactured corroborative evidence.” 

Id. at 234

, 

622 A.2d at 570

. Furthermore,
the fear of fraudulent claims does not justify the judicial deprivation of a plaintiff’s
right to bring an action in tort, as the genuineness of such claims can be adequately
tested by our adversary process. DeMello v. First Ins. Co. of Hawaii, Ltd. (1974),

55 Haw. 519, 526

, 

523 P.2d 304, 308

. It should not be forgotten that lack of a
corroboration requirement, like the elimination of the physical contact requirement,
does not diminish the plaintiff’s burden to prove that the accident actually did
occur. This is a question of fact to be determined by the jury, or the judge if demand
for a jury trial is not made. Brown v. Progressive Mut. Ins. Co. (Fla.1971), 

249 So.2d 429

. An injured party should be given the opportunity to sustain the burden
of proof that an accident did occur, and should be entitled to recover if the trier of
fact so determines, regardless of physical contact or the existence of corroborative
evidence. The scarcity of evidence should not defeat the plaintiff’s right to
persuade the trier of fact that his or her claim is valid. The absence of corroboration
is a factor that goes to the weight of the plaintiff’s case rather than to his or her
ability to bring the case before the trier of fact. 

Raffile, supra, at 236

, 

622 A.2d at 571

. I believe that the traditional tests of credibility, testimony under oath and
cross-examination, coupled with plaintiff’s burden of proof, are sufficient to
provide protection against fraudulent claims. See 

id.

        {¶ 32} The above rationale is the same as that employed by other
jurisdictions which have determined that the physical contact requirement should
be eliminated. See majority opinion, footnote 1. It is interesting that, contrary to
the majority’s assertion, almost all of the many cases cited in the majority’s
footnote 1 did not impose a corroborative evidence test, or any other test, to replace
the physical contact requirement. See 

id.

 This is not surprising as a corroborative
evidence requirement contradicts the rationale that this matter is a question of fact
for the jury and that the fear of fraudulent claims does not outweigh denying a
plaintiff with no eyewitnesses any chance of recovery. Thus, while the majority




                                              13
                             SUPREME COURT OF OHIO




states that “we are confident that the jury system will be able to distinguish between
legitimate cases and fraudulent ones,” its action of prohibiting a claim to go forward
unless the plaintiff has corroborative evidence demonstrates that it does not trust
the jury or other trier of fact to determine, based on whatever evidence is presented,
whether a claim is false or true.
       {¶ 33} In conclusion, while I agree that we should eliminate the physical
contact requirement, I do not believe that we should replace it with another unjust
and unnecessary requirement. As the majority so aptly stated, we should be
“confident that the jury system will be able to distinguish between legitimate cases
and fraudulent ones.”
       {¶ 34} Based on the foregoing, I would affirm the court of appeals’
judgment which found the “physical contact” requirement of the uninsured motorist
provision to be invalid and unenforceable.
                               __________________




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