Kiem To v. State Farm Mutual Insurance

This is a "phantom vehicle" case, in which plaintiffs Kiem To and Chuc Nguyen are attempting to recover under an uninsured motorist provision of their automobile insurance policy for injuries resulting from an accident that they allege was caused by an unidentified vehicle. At issue is the proper construction of a clause in plaintiffs policy, which is based on ORS 742.504(2)(g), providing that the facts of phantom vehicle accidents must be corroborated by the testimony of someone other than a person who "has a claim" against the insurer resulting from that accident. Plaintiffs attempted to corroborate the facts of their case with the testimony of an eyewitness who was injured in the accident, but who had released the insurer from all claims arising out of the accident. The trial court held that the testimony of such a witness is inadequate as a matter of law and, on that basis, it entered summary judgment in favor of defendant and denied a cross-motion for summary judgment filed by plaintiffs. Plaintiffs appeal, assigning error to the trial courts decisions on both motions. We reverse and remand.