The Harper Law Blog

The Harper Law Blog offers news, announcements, thoughts and articles on life, law and our practice areas of emphasis.

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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Recovery from One-Car Motor Vehicle Collisions

Posted Monday, December 18, 2017 by Ed Harper

Often cars/drivers must react to the negligence of other drivers and this seems rather obvious. But, as a result of those reactions, if one crashes their car, through no fault of their own, they may make a claim for underinsured motorist coverage with their own insurance company. This may be the only recourse available. The Revised Code of Washington (RCW) states:

“ ‘Underinsured motor vehicle’ means a motor vehicle regarding the ownership, maintenance, or use of which either no bodily injury or property damage liability bond or insurance policy applies at the time of an accident, or with respect to which the sum of the limits of liability under all bodily injury or property damage liability bonds and insurance policies applicable to a covered person after an accident is less than the applicable damages which the covered person is legally entitled to recover.” 48.22.030(1).

This means the other side either has no insurance coverage for the accident or there is only limited coverage available.

Additionally, the vehicle/driver which caused the accident is also known as a phantom vehicle because one may not know the identity of the driver/vehicle and therefore cannot bring a viable claim against an unknown party. The RCW defines phantom vehicle as:

“For this chapter [RCW 48)] a ‘phantom vehicle’ shall mean a motor vehicle which causes bodily injury, death, or property damage to an insured and has no physical contact with the insured or the vehicle which the insured is occupying at the time of the accident if:(a) the facts of the accident can be corroborated by competent evidence other than the testimony of the insured or any person having an UIM claim resulting from the accident; and(b) the accident has been reported to the appropriate law enforcement agency within 72 hours of the accident.” RCW 48.22.030(8).

As one can see, these requirements are very specific. Further, the term “corroborating evidence” in section (a) has been defined as evidence which “must tend to verify the claimant’s version of the facts and it is something which leads an impartial and reasonable mind to believe that the material testimony is true, testimony of some substantial fact or circumstance independent of the statement of a witness.” Gerkin v. Mutual of Enumclaw Ins. Co., 74 Wn.App.220, 225-26 (1994).

The corroboration must verify the claimant’s version of the accident independent of the injured person/claimant. One must also look to the insurance policy which must contain the independent corroboration requirement in RCW 48.22.030(8) for any claim arising from an incident with a phantom vehicle in order to enforce that statutory requirement. Liljestrand v. State Farm Mut. Auto Ins. Co., 47 Wn.App. 283, 290 (1987). The court is looking for independent evidence. Evidence cannot come from the claimant’s or claimant’s family which may be biased.

If you have been injured in a one car accident through no fault of your own, and you have questions whether you may bring a UIM claim, call Ed Harper at Harper Law 425-284-3333.

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Reliability of Evidence - Evidence Rule 403

Posted Monday, December 11, 2017 by Ed Harper

Evidence Rule 403 stands for the proposition that evidence which is more prejudicial than probative should be excluded from a jury’s purview. A recent unpublished decision, Gilmore v. Jefferson County Public Transportation, (Jefferson Transit) rendered by Division 2 of the Court of Appeals of Washington on April 25, 2017, concluded that a trial court committed reversible error when the court granted the exclusion of the expert witness under Evidence Rule 403. The case has now been brought up to the Supreme Court of Washington.

Defendant Jefferson Transit had proposed the testimony of Allen Tencer, PhD, a biomechanical engineer, that Mr. Gilmore could not have been injured in this collision. Or more specifically, Tencer calculated the forces which occurred to be below the speed necessary for one to be injured. Jefferson Transit did not submit Tencer’s opinion as a medical opinion but merely this proved the collision did not rise to the level of severity where one could be injured.

Dr. Tencer has testified numerous times in “low crash - no cash” injury claims. While Tencer has significant education and experience in biomechanics relative to injury prevention, the trial court precluded the admission of his testimony because it was “intended to create an inference with some aura of authority” and the court felt this evidence was not reasonable or justified.

Tencer’s opinion, according to the trial court, would be prejudicial to plaintiff Gilmore not out-weighed by the probative value of the evidence. Dr. Tencer, by looking at photographs, and making certain assumptions, almost always concludes that the forces experienced in a motor vehicle collision were not sufficient to overcome the threshold of injury. Additionally, as well as providing the defense testimony with an aura of authority, the trial court concluded that Tencer’s opinion would be confusing and misleading to the jury.

Plaintiff Gilmore pointed out to the court there are deficiencies in Tencer’s testing methods. Further, according to Plaintiff Gilmore, Tencer provided speculative testimony on the speed of the defendant’s bus, the damage done to the vehicles, and the plaintiff’s height and weight. In sum, Plaintiff Gilmore contested Tencer’s opinions and his extrapolations from mere averages, and from crash tests different than the situation in each particular case. Therefore, Dr. Tencer’s opinion should not be presented to the jury as it is prejudicial and unreliable under ER 403. It will be interesting to see how the Supreme Court of Washington Rules on this case.

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Loss of Earning Capacity - What can you recover if you cannot work up to your capabilities?

Posted Monday, November 27, 2017 by Ed Harper

Washington Pattern instruction 30.08 stands for the proposition that one’s loss of earning capacity is the inability to earn money. This is the permanent diminution or decrease in the ability to work. It may only entail an increasing difficulty with completing the tasks which comprise your employment.

This is separate from “lost earnings”. Loss of earning capacity focuses on the injured person’s diminished ability to earn money because of his or her injuries. Bartlett v. Hantover, 9 Wn.App. 614, 619 – 620, 513 P. 2d 844 (1973), was affirmed on lost earning capacity, and reversed in part on other grounds by the Supreme Court on review, 84 Wn.2d 426, 520 P.2d 1217 (1974).

In Murray v. Mossman, 52 Wn.2d 885 (1958) the injured party was a private secretary who testified that after the accident she experienced a loss of sensation in her arm and hand and that her ability to take shorthand and to type, indicated her work was affected. She also testified that she often needed to retype her work and was not as efficient as she had been prior to the accident. A co-worker confirmed this testimony. The Washington Supreme Court held this testimony by the plaintiff and by her coworker warranted inclusion of an impairment of earning capacity instruction to the jury although the plaintiff testified that she had lost no wages because of the accident. (Id. at 890)

In Bartlett, the plaintiff was working as a manager of a motel, when he was injured severely when shot by intruders. The injured plaintiff was shot in the head and shoulder and somehow survived. The court stated, “In order to instruct on lost earning capacity, the evidence must show with reasonable certainty that the injured party has suffered an impairment in his ability to make a living. (See McCormick, Damages, Sec. 86, 1935) In Bartlett, the court continues by stating the showing that must be made is that the injury suffered by the plaintiff is an injury that, in fact has diminished the ability of the plaintiff to earn money. (Citing Murray v. Mossman, at 889)

“The requirement of the law leaves the fixing of the amount of loss to the discernment of the jury. Thus, a child of 3 and an unemployed man of 71 can suffer a loss of earning capacity.” (Sherman v. Seattle, 57 Wn.2d 233, 350 P.2d 316, 1960; Riddell v. Red Lion, 124 Wn. 146, 213 P. 487, 1923) “Evidence of physical impairment must be presented and from that evidence of injury to the body and/or mind of the plaintiff, the jury must assess the amount that will compensate for his lessened money-making faculties and reduced income potentialities.” (Kelley v. Great Northern Railway, 59 Wn.2d 894 370 P.2d 528, (1962); Johnson v. Howard, 45 Wn.2d 433 230 P.2d 736, (1954); Handley v. Anacortes Ice Company, 5 Wn.2d 384 100, P.2d 505, (1940); Sheppard v. Smith, 198 wash. 395, 80 8P. 2d 601, (1939); Hirst v. Standard Oil Company of California, 145 Wash. 597, 260 1P. 405, (1927); annotation, 18 A.L.R. 3d 88, (1968). “Evidence of the bodily impairment suffered from the two gunshot wounds amply supported lost earning capacity as an element of damage.” (Bartlett at 9 Wn.App. 619 – 620)

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Giving Back: Military & First-Responders

Posted Monday, November 06, 2017 by Ed Harper

As John F. Kennedy once said, “As we express our gratitude, we must never forget that the highest appreciation is not to utter words, but to live by them.”

The Harper family has a long-standing history of military members and first-responders. I am the proud grandson of a Marine Corp World War I veteran, son of a retired naval officer, brother-in-law to a firefighter and paramedic captain, and father-in-law to an active duty Naval Aviator. There are countless other friends and colleagues I know who have served our country with the utmost integrity and honor.

As we honor those who have served in our military, I thought of how I could give back to our country’s service members and first responders. In partnership with Spirit 105.3 and fellow attorneys, Harper Law wants to give veterans, active-duty and retired military, and first-responders a free legal consultation to assist you in your time of need. This can be of any legal nature; I am happy to answer questions you may have. If I cannot assist you with your case or questions, I will refer you to a trustworthy attorney who can help you.

We honor you and thank you for your service. Give me a call at 425-284-3333 or email me

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