On December 19, 2007, Merissa Armstrong was driving on a snow-covered country road when she locked her brakes and swerved to the right. Her vehicle rolled and she was rendered a paraplegic. When she recovered consciousness days later she told her husband she had swerved to avoid an oncoming red car.

Those injured as a result of the actions of an unidentified driver have the right to sue their own insurance company for the negligence of the unidentified driver up to a limit of $200,000. That was not in dispute in this case. Merissa was also covered by the Family Protection Endorsement on her automobile policy which gave her the right to claim, against her own insurer, for an amount up to her own policy limits of $2 million. Merissa could only access this additional $1.8 million of coverage (that she had paid for) if there was an independent witness or other physical evidence to corroborate her story, and indicate the involvement of another car.

Everyone agreed there were no witnesses, that the tire tracks of Merissa’s vehicle swerved to the right, that the black box in her vehicle showed that she had braked hard and that her air bags deployed. The police also found deer tracks at the scene of the accident. HSH hired an engineer who opined that the evidence was more consistent with a sudden attempt to avoid something ahead on the roadway than a loss of control due to ice or snow on the roadway. The Defendant’s position was that there was no evidence of the involvement of another car, as the evidence was equally consistent with a deer being on the roadway. The Court accepted our argument that the analysis should begin with Merissa’s evidence that a red car caused the accident. Looked at with this background it is clear that the braking and the swerve to the right indicate the involvement of another car. The physical evidence did not have to prove the involvement of the other car, only offer corroborating evidence of the involvement of that car.

This decision is extremely important as it clarifies the law and establishes a threshold that injured victims can more easily meet when they allege that an unidentified automobile caused the accident and no other witnesses are available. The Court accepted that the plaintiff does not need physical evidence that, standing alone, proves the involvement of an unidentified car. All that is required is evidence that corroborates the plaintiff’s version of events and indicates the involvement of another car.

If you are injured in an accident involving an unidentified driver, preserve all of the evidence you can. Take photographs of the scene of the accident, of your own car, of tire marks, and get the black box from your own car read by an expert before the car is destroyed. In an ideal situation you will find direct evidence of the other car, such as paint or tire marks, but even if you don’t an expert analysis of the available physical evidence may be capable of corroborating your evidence and allowing your claim to proceed. You should also retain legal counsel who can help to ensure the necessary evidence is preserved and analyzed by an appropriate expert.

We not only help champion our clients’ entitlement to insurance benefits, we work tirelessly to change the law to ensure that the rights of accident victims are protected.

Howie, Sacks & Henry LLP – Personal Injury Law – D. Joel DickFor more information about this case or to help you with your own claim, contact D. Joel Dick at 416-572-3516 or djdick@hshlawyers.com.

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