Most often when people think of auto accidents, they imagine a physical crash between two or more vehicles. Sometimes, however, a vehicle causes an accident without actually impacting any other vehicles and subsequently gets away. These types of accidents are sometimes referred to as “miss and run” accidents.
For example, a woman is driving in the far left lane of I-94 when the vehicle to the right of her abruptly switches lanes and cuts her off. In an attempt to avoid the crash, the woman moves to the left but ends up crashing into the concrete barrier. The two vehicles never actually touch, but the woman’s vehicle is now totaled, and she is injured. The vehicle that abruptly changed lanes continues to drive, and the woman has no way of identifying the driver or other vehicle. The vehicles that cause these miss and run accidents are called “phantom vehicles,” and unless you act quickly and diligently, it may be difficult to recover for the damages caused by a phantom vehicle.
In Wisconsin, a phantom vehicle is defined as “a motor vehicle to which all of the following apply:
- The motor vehicle is involved in an accident with a person who has uninsured motorist coverage.
- In the accident, the motor vehicle makes no physical contact with the insured or with a vehicle the insured is occupying.
- The identity of neither the operator nor the owner of the motor vehicle can be ascertained.” (Wis. Stat. § 632.32 (2)(bh)).
Prior to Wisconsin’s 2011 legislative session when a new law called “Truth In Auto Insurance” was enacted, victims of these miss and run crashes were largely out of luck because in order to make a claim under the Uninsured Motorist portion of one’s own insurance policy, physical contact with another, uninsured vehicle was required. For accidents occurring prior to November 1, 2009, uninsured motorist coverage was only available if there was physical contact between the vehicles.
One of the changes brought about by Truth In Auto was the availability of coverage when crashes occurred with phantom vehicles but only if certain criteria were met. In Wisconsin, in order to have a valid claim for Uninsured Motorist coverage when a crash is caused by a phantom vehicle, three elements must be satisfied according to Wis. Stat. § 632.32(g)(2):
- The facts of the accident are corroborated by competent evidence that is provided by someone other than the insured or any other person who makes a claim against the uninsured motorist coverage as a result of the accident.
- Within 72 hours after the accident, the insured or someone on behalf of the insured reports the accident to a police, peace, or judicial officer or to the department of transportation or, if the accident occurs outside of Wisconsin, the equivalent agency in the state where the accident occurs.
- Within 30 days after the accident occurs, the insured or someone on behalf of the insured files with the insurer a statement under oath that the insured or a legal representative of the insured has a cause of action arising out of the accident for damages against a person whose identity is not ascertainable and setting forth the facts in support of the statement.
The first element is arguably the most difficult element to satisfy as it requires that an independent party or witness to the incident come forward and corroborate the facts of the incident. This independent party may not also be someone who is making a claim for coverage under the uninsured motorist portion of the policy, so a passenger in the vehicle who is also injured and seeking to make his or her own claim would not suffice. If there was a witness to the crash and his or her contact information is available, the witness would be able to provide the necessary evidence to fulfill the first element. If there were no independent witnesses, or the witnesses’ contact information is not available, it will likely be very difficult to satisfy element number one. This is precisely why it is crucial to jot down contact information from the Good Samaritans who stick around after a crash to make sure everyone is okay. On the flip side, if you happen to see an accident happen, it is important that you stay on scene to provide your name and statement to the police officers when they arrive. This information can be vital to the victim’s case, but detrimental if not properly accounted for.
Elements two and three are not nearly as difficult to satisfy in comparison to element number one, in part because they are generally done in a majority of car crash cases as standard protocol. It is important to call the police to report every car accident, but especially accidents involving phantom vehicles, because without a report made to the appropriate authorities within 72 hours, the victim could lose his or her right to pursue an uninsured motorist claim.
Finally, within 30 days, a statement must be given under oath by the victim or his/her representative setting forth the facts which create the basis for the claim and affirming that the identity of the person causing the victim’s damages is unknown or not ascertainable.
If any of the three elements set forth in Wis. Stat. § 632.32(g)(2) are not satisfied within the time periods set forth in the statute, the insurance company may have a basis to deny the claim. This is why it is important to have a skilled, dedicated and proven attorney fighting for you and your rights from day one. Make sure that you are not giving up any important rights by missing a statutory deadline.
If you have been the victim of an auto accident, particularly a crash caused by a phantom motor vehicle, give the attorneys at Groth Law Firm a call. They will fight to make sure that your rights are protected and your recovery is maximized. The attorneys at Groth Law Firm offer free consultations and would be happy to answer any questions you might have. You can reach the Groth Law Firm by calling (414) 375-2030. Let us fight for you.