Insurance – Auto – UM – ‘Witness’ – Certified Question

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AutoWhere a sheriff’s department officer investigated what appeared to be a drive-by shooting after the fact, he did not witness the accident as required by S.C. Code Ann. § 38-77-170.

We answer, “No” to the federal district court’s certified question: Can a law enforcement officer who conducts an official investigation of an accident that was not contemporaneously observed by any identified, surviving person be a “witness” under S.C. Code Ann. § 38-77-170?

Video from a surveillance camera revealed an unknown vehicle following plaintiff’s decedent on his motorcycle 90 seconds prior to a 911 call reporting an apparent motorcycle accident. The decedent was found in a ditch along with his motorcycle. He had been shot five times in his left side.

Plaintiff sought uninsured motorist benefits.

Ordinarily, an insured has no right of recovery against his insurer for injuries caused by an unknown vehicle, unless certain requirements are fulfilled. At issue is the requirement that “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. . . .”

Because the decedent’s injuries were not caused by physical contact with the unknown vehicle, plaintiff must produce a signed affidavit by someone who witnessed the events.

Plaintiff produced the affidavit of a law enforcement officer who investigated the scene of the accident. But our jurisprudence requires that in order to comply with § 38-77-170(2), the affiant must have observed at least some part of the incident.

While circumstantial evidence may be sufficient to satisfy the “truth of the facts” prong of this provision, it does not satisfy the statutory requirement that the affiant actually witness the accident. Moreover, we must honor the General Assembly’s effort to balance compensation for those injured by unknown motorists while safeguarding against fraudulent claims.

Here, the officer’s knowledge is derived solely from his investigation, and he did not observe the underlying facts of the decedent’s death. While we concede the investigator presents circumstantial evidence of the manner of the decedent’s death, the statute requires more, specifically, that “the accident must have been witnessed” by the affiant. S.C. Code Ann § 38-77-170(2).

We acknowledge the purpose behind this requirement – to prevent fraudulent claims – is not advanced in this particular case. Indeed, we do not doubt the veracity of the officer’s affidavit; however, we must remain faithful to the language in the statute. Consistent with the language of the statute, we conclude the officer does not qualify as a witness because he failed to observe the incident; accordingly, we answer the certified question, “No.”

Silva v. Allstate Property & Casualty Insurance Co. (Lawyers Weekly No. 010-090-18, 7 pp.) (Kaye Hearn, J.) On certification from the U.S. District Court for the District of South Carolina. Edward Pritchard for plaintiff; R. Hawthorne Barrett, Robert Kneece and John Wilkerson for defendant. S.C. S. Ct.