No. 21438-9-IIIThe Court of Appeals of Washington, Division Three. Panel Eight.
Filed: November 13, 2003 UNPUBLISHED OPINION
Appeal from Superior Court of Grant County Docket No: 01-2-00936-9 Judgment or order under review Date filed: 09/09/2002
Counsel for Appellant(s), Cheryl Rani Guttenbe Adamson, Attorney at Law, 6725 W Clearwater Ave, Kennewick, WA 99336-1788.
Counsel for Respondent(s), Lorna Weber Lewis, Calbom Schwab PSC, P.O. Box 1429, Moses Lake, WA 98837-0218.
George Joseph II Schwab, Attorney at Law, Calbom Schwab Psc, P.O. Box 1429, Moses Lake, WA 98837-0218.
BROWN, C.J.
Truck driver Omar Garza was injured in a crash. Mr. Garza sought underinsured motorist (UIM) coverage from Truck Insurance Exchange (Truck), claiming another car caused him to lose control and crash his vehicle. He filed a declaratory judgment action against Truck. Truck moved for summary judgment arguing Mr. Garza could not adequately corroborate his `phantom car’ allegation. The trial court denied summary judgment. Truck appeals. We affirm.
FACTS
On July 15, 1998, Mr. Garza was hauling a tanker trailer partly filled with liquid fertilizer for his employer in Grant County when he lost control of the vehicle and crashed with resulting physical injuries. Mr. Garza was covered by his employer’s Farmer’s Insurance Group insurance policy (policy) purchased through Truck. The policy included a provision for UIM coverage. The UIM provision provided coverage for accidents caused by unidentified drivers in unidentified cars, commonly called `phantom vehicles,’ provided: `The facts of the `accident’ can be corroborated by competent evidence other than the testimony of any person having an underinsured motorists coverage claim as a result of such `accident.” Clerk’s Papers (CP) at 25.
Mr. Garza filed a UIM claim with Truck, alleging the crash was the result of a white or light-colored unknown oncoming vehicle crossing the centerline and causing him to lose control of his vehicle. Truck denied coverage partly stating, `there is a complete absence of any evidence which tends to verify Mr. Garza’s version of the facts.’ CP at 203. On August 28, 2001, Mr. Garza filed a declaratory judgment action against Truck. Mr. Garza specifically sought a judgment declaring that the insurance policy provided UIM coverage and that the insurer had an obligation to arbitrate the claim.
On February 20, 2002, Truck filed a motion for summary judgment, contending that Mr. Garza’s “phantom vehicle” claim lacked sufficient corroboration. CP at 12. Truck supported the motion with excerpts of depositions taken from Mr. Garza, accident witness Mr. Maloney, accident reconstruction expert Larry Stadler, and Grant County Deputy Sheriff Keith Edie.
Mr. Garza said the accident occurred while he was descending a hill. And I was coming down. I was gradually coming down the hill and barely entering the curve. As I was entering the curve, a car was approaching. I didn’t think anything of it. It was just a car, you know. And as soon as I started getting more into the hill, I noticed that the car was coming into my lane. As soon as that happened, I got kind of scared. And I knew if I wasn’t going to move, something was going to happen.
So I pulled over slowly to the side of the road. As I did so, the slosh from the liquid tank kind of made things a little difficult to control, and I missed — I didn’t see what happened to the car or anything, but I was more worried about me hitting the car and trying to gain control of my truck. Came back on the truck. And as I did so, slosh from the liquid tanks made me lose control, and that’s when the accident occurred. CP at 29-30. Mr. Garza said the car was white.
Mr. Garza testified he was in considerable pain after the accident, he could not walk, and he was coughing blood. Other drivers aided Mr. Garza until medical personnel arrived. The emergency personnel loaded Mr. Garza in an ambulance and took him to a hospital in Moses Lake. Mr. Garza then described the following:
And during the ride in the ambulance to the hospital, I told one of the MTs what had happened when I started gaining control, I guess you could say, what happened. I told him that the car had come into my lane, and I pursued off the road a little bit and lost control of my truck. CP at 37.
Mr. Maloney said he was driving up the hill. `And as I looked up to the left to the top of the hill, I saw a light-colored car in the road. And then all of a sudden, I saw a tanker blow through the guardrail and blow down the side of the hill.’ CP at 41. Mr. Maloney testified the light-colored car was moving in the same direction as he was moving. `From what I could remember looking at, I could — to me the angle that I was looking at looked like the [light colored] vehicle was in the proximity of the front end of the truck.’ CP at 42. When asked if the light colored vehicle was `at the front end of the truck when the truck was going over the rail,’ Mr. Maloney replied: `Right in that general area.’ CP at 42. Mr. Stadler testified he examined the accident scene two times and talked with Mr. Garza. When asked if he could state on a more probable or not basis the cause of the accident, Mr. Stadler replied:
No. I think about the only thing I can say is I was comfortable with what [Mr. Garza] had to say out there after we looked at it, and it was very consistent with what I would expect, maneuverability-wise for the truck and what physical evidence I could see. Other than that, I really don’t know what caused this accident. CP at 55.
Deputy Edie said he arrived at the scene as the ambulance was taking Mr. Garza to the hospital. The deputy asked Mr. Maloney if `there was anybody in front of the truck. He said no.’ CP at 70. But the deputy did not ask Mr. Maloney also about cars preceding his own course of travel. I can, on record, say I definitely asked [Mr. Maloney] about any vehicles in front of the truck. I cannot accurately say if that was [sic] any vehicles around or if it was any vehicles in the front of the truck. And I am thinking that’s what I meant when there were are no vehicles in front of him. CP at 71.
Deputy Edie said he observed no signs of evasive maneuvers. The deputy issued and had mailed to Mr. Garza an infraction for `Speed too fast for conditions.’ CP at 73. Based on his measurement of skid marks, the deputy concluded Mr. Garza was driving too fast to safely negotiate the corner. And the deputy saw no `evidence of another vehicle.’ CP at 75.
The deputy later learned the district court dismissed the infraction citation for unknown reasons.
Mr. Garza filed an amended complaint for declaratory judgment in February 2002. In July 2002, the trial court entered a memorandum opinion denying Truck’s summary judgment motion. The trial court reasoned Mr. Maloney’s testimony was sufficient to defeat summary judgment. The trial court entered a consistent order in September 2002.
Truck appealed. We accepted the matter as an appeal of right.
ANALYSIS
The issue is whether the trial court erred when it denied Truck’s summary judgment motion on Mr. Garza’s phantom vehicle allegation.
‘When reviewing an order of summary judgment brought under CR 56, the appellate court engages in the same inquiry as the trial court.’ Right — Price Rec. v. Connells Prairie Community Council, 146 Wn.2d 370, 381, 46 P.3d 789 (2002) (citing Wilson v. Steinbach, 98 Wn.2d 434, 437, 656 P.2d 1030 (1982)). This court considers the facts and all reasonable inferences flowing from those facts in the light most favorable to the nonmoving party. Right-Price Rec., 146 Wn.2d at 381. `Summary judgment is appropriate if the pleadings, affidavits, depositions, and admissions on file show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law.’ Id. (citing CR 56(c)).
As required under RCW 48.22.030(2), the Truck policy covers injuries caused by `phantom vehicles.’ Phantom vehicle coverage is available to the insured if:
(a) The facts of the accident can be corroborated by competent evidence other than the testimony of the insured or any person having an underinsured motorist claim resulting from the accident; and (b) The accident has been reported to the appropriate law enforcement agency within seventy-two hours of the accident.
RCW 48.22.030(8).
The issue here turns on whether Mr. Garza presented sufficient corroborating evidence. `The sufficiency of verification is an issue of coverage which must be decided by the court.’ Farmers Ins. Co. v. Frederickson, 81 Wn. App. 319, 322, 914 P.2d 138 (1996).
Corroborating evidence for purposes of RCW 48.22.030(8) is evidence tending to strengthen or confirm the insured’s phantom vehicle allegation. Gerken v. Mut. of Enumclaw Ins. Co., 74 Wn. App. 220, 225, 872 P.2d 1108 (1994); Nationwide Ins. v. Williams, 71 Wn. App. 336, 343, 858 P.2d 516 (1993); Powell v. Viking Ins. Co., 44 Wn. App. 495, 502, 722 P.2d 1343 (1986). `Corroboration `is something which leads an impartial and reasonable mind to believe that material testimony is true, testimony of some substantial fact or circumstance independent of a statement of a witness.” Gerken, 74 Wn. App. at 225-26 (quoting Farmers Ins. Exch. v. Colton, 264 Or. 210, 504 P.2d 1041, 1045 (1972)). `Corroborating evidence `must tend to verify the claimant’s version of the facts.” Gerken, 74 Wn. App. at 226 (citing Colton, 504 P.2d at 1045).
The phantom vehicle claimant `is not required to prove the existence of a phantom vehicle.’ Gerken, 74 Wn. App. at 226. ‘[The claimant] need only present evidence which corroborates (strengthens or confirms) his [or her] testimony of the phantom vehicle.’ Id.
The trial court reasoned Mr. Maloney’s testimony was sufficient to defeat summary judgment. Mr. Maloney said he saw a `light-colored [vehicle]’ going in the direction toward Mr. Garza’s truck `in the proximity of the front end of the truck,’ or `at the front end of the truck when the truck was going over the rail.’ CP at 42. Mr. Maloney could not tell from his viewing angle whether the light-colored vehicle crossed into Mr. Garza’s lane of travel. But that level of observation is not necessary for corroboration purposes. See Colton, 504 P.2d at 1044-45
(reasoning witness’s testimony of phantom vehicle in vicinity of accident was sufficient corroboration even though witness did not see the accident). Colton is instructive because the Oregon phantom vehicle statute contains language nearly identical to the Washington statute. See id. at 1043. The purpose of the phantom vehicle statute is to broaden the insured’s right of recovery in situations where there is no contact between the negligent unidentified driver’s vehicle and the insured’s vehicle. Id. at 1044.
The `facts of an accident’ do not mean the total version of all of the facts of impact or of a motor vehicle accident. We conclude that the statute requires the observation, with corroborated testimony thereof, of facts from which inferences may be drawn that the accident was caused by a phantom vehicle. The requirement of corroboration was intended to discourage and prevent fraudulent claims and this restriction should not be extended to prevent recovery where fraud does not exist. Id.
Truck focuses upon inconsistencies between Mr. Maloney’s testimony and Mr. Garza’s version of events. In particular, Mr. Maloney recalled seeing Mr. Garza’s truck `crow-hopping’ (bouncing under the stress of braking) prior to going off the road. CP at 44. But Truck is inappropriately interpreting the facts in a light most favorable to itself, the moving party. When Mr. Maloney’s testimony is properly interpreted in favor of Mr. Garza, the crow-hopping could be reasonably viewed as the result of emergency braking in response to the impending encroachment of the light — colored vehicle.
In sum, Mr. Maloney’s testimony alone raises a genuine issue of material fact as to the existence of the phantom vehicle and thus satisfies the UIM corroboration coverage requirement. See Williams, 71 Wn. App. at 341. The trial court did not err.
The remainder of Truck’s briefing addresses mainly whether Mr. Garza’s statement to emergency personnel can be considered as corroborating evidence. As discussed, the trial court did not address this issue.
Because we agree Mr. Maloney’s testimony was sufficient to defeat summary judgment, we do not discuss this issue.
We note Truck, relying on the testimony of Deputy Edie and Mr. Stadler, also argues speed alone was the cause of Mr. Garza’s injuries. Again, applying the proper standard of review, the testimony of both men merely tended to show the existence of disputed fact issues regarding causation. Although the deputy concluded Mr. Garza was driving too fast, his investigation was not thorough and he did not question Mr. Maloney about cars approaching from the opposite direction. And Mr. Stadler’s testimony did not contradict Mr. Garza’s version of events; to the contrary, Mr. Stadler said Mr. Garza’s story was consistent with the results of his investigation.
Mr. Garza requests costs and attorney fees expended on appeal. Although Mr. Garza’s brief fails to cite the applicable authorities in accordance with RAP 18.1(b), he satisfactorily cured this deficiency in oral argument. Accordingly, as prevailing party, he is eligible for an award of costs and fees in an amount to be determined by a commissioner of this court, provided he complies with RAP 18.1(d). Olympic Steamship Co., v. Centennial Ins. Co., 117 Wn.2d 37, 52, 811 P.2d 673 (1991); McCauley v. Metro. Property Cas. Ins. Co., 109 Wn. App. 628, 639, 36 P.3d 1110
(2001). Affirmed.
A majority of the panel has determined this opinion will not be printed in the Washington Appellate Reports, but it will be filed for public record pursuant to RCW 2.06.040.
SWEENEY and Kurtz, JJ., concur.