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BIKELAW 101 – RECENT OHIO SUPREME COURT DECISIONS
By, Steven M. Magas, Attorney at Law
Bike riders, as a rule, rarely want to have anything to do with cars. However, a recent Ohio Supreme Court decision involving automobile insurance law may help bike riders.
The case, Girgis v. State Farm Mutual Auto Ins. Co. (1996), 75 Ohio St.3d 302, involves a motorist being run off the road by a “phantom vehicle,” that is, a vehicle which fled the scene of the accident and was never located. Obviously, if the ‘phantom motorist” was never found, he could not be sued for damages arising from his misdeed. The motorist is not out of luck, however, provided she maintained “uninsured motorist coverage” under her own auto insurance policy.
Most “uninsured motorist” provisions require that some actual physical contact occur between the “phantom vehicle” and the insured’s vehicle. This was an absolute requirement that was upheld by the Supreme Court in earlier cases. Thus, if you were run off the road by thephantom motorist and managed to avoid hitting him, but ran into a tree instead, you could not recover under your uninsured motorist provisions since there was no “physical contact” between your car and the phantom car. If, however, the phantom vehicle struck your car ever so lightly and you THEN veered into the tree, you COULD recover from your policy.
Obviously, this rule led to some very unfair results and was recently challenged in the Girgis case. The Ohio Supreme Court determined that the “physical contact” rule was contrary to public policy and struck it down. In its place the Court adopted a “corroborative evidence test.” Now, if you have “independent third party testimony that the negligence of the unidentified vehicle was a proximate cause of the accident…” you can recover against your insurer.
OK, OK, you say, but what does all this have to do with bicycle riders?? Well, many cyclists are unaware that their auto insurance can be used in situations where they have been run off the road by motorists. Motorists throw things at cyclists, smack them as they drive by, spit on cyclists, cut them off and, frequently, are never identified or caught. Under the old rule, if there was no “physical contact” between the bike and the car, the cyclist was out of luck. A cyclist who managed to avoid being struck, but ran into a ditch and went head over handlebars, was simply out of luck.
Under this new case law, so long as you can prove through “independent third party testimony” that there was indeed a car around that ran you off the road, you can proceed against the insurer.
Unfortunately, this rule is much more vague than the absolute rule regarding physical contact so it remains to be seen exactly what evidence insurers, and juries, will accept. Is an eyewitness always required? How about a police office who reconstructs the accident? How about if you hire an accident reconstruction expert to reconstruct the accident–is he really “indepedent?” What if a paint expert matches chips ground into the dents on your frame to the paint used on ’64 Ford Fairlane? Friends, these are the thoughts that keep trial lawyers in business!!
