In the second blog post in a seven-part series, our Birmingham car accident lawyers explain who qualifies as an uninsured or underinsured motorist, who the burden of proof falls to, and “phantom vehicles.”
An uninsured motorist is a person driving an uninsured automobile as defined by Ala. Code § 32-7-23. An uninsured vehicle is one where “neither the owner nor the operator carries bodily injury liability insurance.” A vehicle is also uninsured when the insurance company is insolvent after the policy is issued or at the time of the accident. The definition also includes underinsured automobiles where the at-fault driver’s bodily injury liability insurance’s limit is below the statutory requirement or the sum total of the at-fault driver’s insurance coverage is less than the damages the injured person is legally entitled to recover.
One issue that is likely to arise in the context of a UM/UIM claim is who has the burden of proving that the at-fault driver is uninsured or underinsured. Ordinarily, the burden of proof is on the insured. However, once the insured demonstrates reasonable diligence in attempting to determine the existence of insurance, the burden shifts to the carrier. Reasonable diligence requires more than merely filing the lawsuit and taking a default judgment.
The insured bears no burden of proof in the case of a “phantom vehicle.” Phantom vehicles are simply deemed uninsured. A vehicle is a phantom vehicle when the vehicle that caused the accident is unknown, as in the case of a hit and run.
Sometimes, a court can presume the existence of a phantom vehicle, as in the case of debris on the road that must have come from a car. In one case, the plaintiffs were involved in an accident after braking to avoid what turned out to be a truck bench in the middle of the road. The court determined that the plaintiffs had produced enough to show that a phantom motorist’s negligence caused the accident. In another case, the plaintiffs swerved off the side of the road after their car slipped on some gravel. They claimed to have been driving near a dump truck and reported that “something” kept hitting their windshield before the accident. The jury found that an unknown operator of a vehicle was responsible for the gravel being on the highway. In other words, the gravel and testimony were enough to show that a phantom motorist caused the accident.
Have you been involved in a hit and run accident with a phantom vehicle? Or are you looking to receive compensation after being hit by an uninsured or underinsured motorist? Our Birmingham car accident lawyers can help. Contact us today!