Phantom Vehicle - What is not Corroborating Evidence

Posted Friday, December 29, 2017 by Ed Harper

An uninsured motorist claim can be brought when an unknown, third-party has caused the collision. In order to prove that a “Phantom Vehicle” caused the collision, independent evidence, not coming from the claimant or claimant’s family can establish this proof. An excited utterance can be used as corroborating evidence, under the right circumstances.

In the case, Burmeister v. State Farm Ins. Co., 92 Wn.App. 359 (1998) the court establishes statements made to a medical doctor standing alone were insufficient and inadmissible under a hearsay exception for an excited utterance, as corroborating evidence of a phantom vehicle. “(Plaintiff) Burmeister failed to establish, facts as would be admissible in evidence, the existence of a phantom vehicle.” (Burmeister at 362)

In Burmeister, the plaintiff, Diane Burmeister, who was the driver and sole occupant of her vehicle, drove off the road and down an embankment. Plaintiff Burmeister filed a UIM claim against her insurance company, State Farm Mutual. “Burmeister contends that an oncoming car in her lane caused her to lose control on some pea gravel in the roadway.” (Burmeister at 363)

State Farm moved for summary judgment arguing Burmeister could not corroborate the existence of a phantom vehicle with admissible evidence other than her own testimony. Plaintiff Burmeister offered statements she made to the investigating police officer and the medical personnel who treated her after the accident. The case was dismissed as Plaintiff Burmeister failed to establish, with facts which would be admissible in evidence, the existence of an at-fault vehicle. Corroborating evidence must verify the claimant’s version of the facts: “‘it’ is something which leads an impartial and reasonable mind to believe that material testimony is true, testimony of some substantial factor circumstance independent of a statement of a witness.” (Gerken v. Mutual of Enumclaw, 74 Wn.App. 220, 225 – 26 (1994).

Regarding statements within her medical records, Plaintiff Burmeister attempted to show that her statements were excited utterances, stating they were spontaneous or instinctive utterances of thought and not the product of premeditation, reflection, or design. (Beck v Dye, 200 Wash. 1 (1939).

Burmeister failed to provide any information from the medical personnel to show she was still under the influence of the accident at the time of the statement being given. Instead, she merely argues that the medical evidence proves that her statement was made spontaneously. Therefore, “Burmeister cannot connect her medical evidence with the foundation requirements that her statement was made while she was still under the stress of excitement caused by the event.” (State v. Brown, 127 Wn.2d 749 (1995), “and that it was not the product of premeditation, reflection, or design.” (Beck at 10)

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