Bone v. State Farm Mutual Insurance

Johnson, Judge. The trial court wrote an excellent, thorough, complete and correct order in granting State Farm Mutual Insurance’s motion for summary judgment. We adopt the trial court’s order, set out below in full, verbatim, as our opinion in this case. Order of the Trial Court. “This case came before the Court on a Motion for Summary Judgment filed by State Farm Mutual Insurance, the Plaintiff’s uninsured motorist carrier. Plaintiff John Bone responded, and an oral hearing was held on January 31, 1994. After considering the file as a whole, the Court finds that no genuine issues of material fact remain for resolution by a jury and that State Farm Insurance is entitled to judgment as a matter of law. “On February 11, 1993, Plaintiff filed a ‘John Doe’ action against his uninsured motorist carrier. Under OCGA 33-7-11, a person can make a ‘John Doe’ claim against his uninsured motorist carrier if one of two situations exist. In the first scenario, actual physical contact must have occurred between the motor vehicle of the unknown party and the insured’s vehicle. Under the evidence produced to this Court, there is no evidence that actual physical contact ever occurred between the Plaintiff’s vehicle and the ‘John Doe’ vehicle. “Plaintiff’s evidence that actual physical contact occurred consists of two items: the affidavit of David Brown and the deposition of John Bone. In his affidavit, Mr. Brown states that between March of 1991, and November of 1991, he painted the Plaintiff’s car, and it [783] evidenced no body damage. After the accident, Mr. Brown testified there was body damage ‘as if struck by a car. The corroboration element of OCGA 33-7-11 (b) (2) cannot be satisfied by circumstantial evidence, including physical damage to Plaintiff’s car. Murphy v. Georgia General Insurance Co., 208 Ga. App. 501, 431 S.E.2d 147 (1993). Mr. Brown’s affidavit proves only circumstantial evidence of the collision, and cannot satisfy the corroboration requirements of the statute. “Plaintiff also points to his own testimony to support his contention that actual physical contact occurred. However, Plaintiff’s belief that impact occurred is based solely on the same circumstantial evidence found in Mr. Brown’s affidavit: that his car was scuffed after the accident when it was not scuffed before the accident. Bone Depo. P. 87. Plaintiff testified that he neither felt, nor saw, contact between his car and the ‘John Doe’ car. Id. Such circumstantial evidence will not supply the necessary corroboration to satisfy OCGA 33-7-11. Murphy, 208 Ga. App. at 502. Therefore, Plaintiff has not supplied sufficient corroboration of actual physical contact to allow recovery under OCGA 33-7-11. “In addition to actual physical contact, a plaintiff may recover for a ‘John Doe’ accident if the description by the claimant of how the accident occurred is corroborated by an eyewitness to the occurrence. The supporting testimony must, however, corroborate the material allegation of the plaintiff’s description of how the accident occurred, National Surety Corp. v. O’Dell, 195 Ga. App. 374, 393 S.E.2d 504 (1990), and be made by an eyewitness. Id. at 376. Plaintiff points to the testimony of Tammy Huckaby to satisfy these requirements. “After considering Ms. Huckaby’s testimony, the Court finds that she could not sufficiently corroborate Plaintiff’s allegations. She testified that she never observed the ‘John Doe’ vehicle cross the center line prior to the accident, Huckaby Depo. P. 38, that she never saw the two vehicles pass each other, Huckaby Depo. P. 31, and that she never saw Plaintiff’s car strike the utility pole, Huckaby Depo. P. 31. The material allegations of Plaintiff’s Complaint are that an unknown Volkswagen came down the middle of the road, and forced him into the curb. Ms. Huckaby’s testimony does not substantiate that claim. In addition, this Court finds that Ms. Huckaby was not an eyewitness to the accident because she neither saw the two cars pass, nor the actual impact of Plaintiff’s car. Therefore, Plaintiff has not fulfilled the eyewitness corroboration requirement of OCGA 33-7-11 (b) (2). Having found that Plaintiff has not complied with the statutory requirements of OCGA 33-7-11, this Court hereby GRANTS State Farm Insurance’s Motion for Summary Judgment, and this case stands DISMISSED.” (Trial court order ends.) Judgment affirmed. Pope, C. J., Birdsong, P. J., Andrews, [784] Blackburn, Smith and Ruffin, JJ., concur. McMurray, P. J., and Beasley, P. J., dissent.