Miller v. Doe
| Decision Date | 05 January 1994 |
| Docket Number | No. 24005,24005 |
| Citation | 441 S.E.2d 319,312 S.C. 444 |
| Parties | Janette MILLER, Respondent, v. John DOE, Appellant. . Heard |
| Court | South Carolina Supreme Court |
Charles E. Carpenter, Jr., R. Davis Howser, and Deborah L. Harrison, all of Richardson, Plowden, Grier & Howser, Columbia, for appellant.
Frank A. Barton, of J. Marvin Mullis, Columbia, for respondent.
This is an appeal of a personal injury action to determine liability and damages for injuries arising out of an automobile accident involving an unknown motorist.
The respondent was a passenger in a vehicle owned and operated by Mary Miller. The two were involved in a non-contact accident with an unknown vehicle operated by an unidentified driver. Respondent claims that the unknown driver failed to dim his lights thus temporarily blinding Mary Miller and causing her to lose control of her car and run off of the road. Respondent and Mary were the only witnesses to the accident.
Respondent sought recovery for her injuries sustained in the accident from Mary's insurer, State Auto Property and Casualty Insurance Company. The parties arrived at an agreement whereby the insurer would pay respondent $7,500 if it was determined that she had a right of action or recovery under S.C.Code Ann. § 38-77-170 (1989). Section 38-77-170 provides in pertinent part that:
If the owner or operator of any motor vehicle which causes bodily injury or property damage to the insured is unknown, there is no right of action or recovery under the uninsured motorist provision, unless:
(1) the insured or someone in his behalf has reported the accident to some appropriate police authority within a reasonable time, under all the circumstances, after its occurrence;
(2) the injury or damage was caused by physical contact with the unknown vehicle, or the accident must have been witnessed by someone other than the owner or operator of the insured vehicle; provided however, the witness must sign an affidavit attesting to the truth of the facts of the accident contained in the affidavit;
(3) the insured was not negligent in failing to determine the identity of the other vehicle and the driver of the other vehicle at the time of the accident.
(Emphasis added).
The parties agreed to submit the sole legal issue to the trial court on Stipulations of Fact and memoranda. The trial court found that respondent had a right to recover uninsured motorist coverage benefits under § 38-77-170 and was entitled to the payment of $7,500 from the insurer. This appeal follows.
An insured cannot recover uninsured motorist coverage unless the three conditions under § 38-77-170 are met. John Doe, represented by Mary Miller's insurer, contends that the second requisite condition has not been met. Specifically, since there was no physical contact involved in the accident, the attesting witness requirement has not been met. Appellant asserts that the respondent cannot be her own witness because she has a vested interest in the outcome. Appellant urges that the legislature intended that an attesting witness be an independent, disinterested witness to the accident. Furthermore, appellant argues that allowing an injured passenger to be her own attesting witness defeats the legislative intent and increases the possibility of false claims.
Respondent argues that under the clear language of § 38-77-170, the only persons excluded from acting as attesting witnesses are the owner or operator of the insured vehicle. Respondent asserts that since she was neither the owner or the operator, she should not be excluded from acting as a witness. The trial court agreed with respondent.
Appellant cites Chestnut v. South Carolina Farm Bureau Mutual Ins., 298 S.C. 151, 378 S.E.2d 613 (Ct.App.1989) and Wausau Underwriters Ins. Co. v. Howser, --- S.C. ----, 422 S.E.2d 106 (1992) to support his contention that the witness must be an independent person. While in both cases the Courts used the term "independent witness", neither case addresses the question of whether an injured passenger can be an attesting witness.
The statutory language is plain and clear. There is no statutory requirement that the witness be...
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