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Three Tips to Consider if you are Involved in a "Miss-and-Run" Accident

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miss-and-run-2Imagine driving down an icy two-lane county highway on a winter night, when suddenly an oncoming car swerves into your lane, headed right toward you. As you find yourself inches away from a head-on collision, you make a snap decision to pull the wheel to the right-rather than into the line of oncoming traffic. While you narrowly avoid contact with the oncoming car, the ice on the shoulder of the road makes it impossible to regain control of your vehicle. Your car flips several times before settling upside-down in the ditch. You are injured and your car is totaled, but the oncoming driver is nowhere to be found.

Fast-forward a month later...between the mounting hospital and medical bills, your totaled vehicle and time off of work, you are struggling to make ends meet. You are confident that having signed up for, and paying premiums on uninsured motorist coverage, all of your expenses will be covered. After all, this type of situation is the reason why you have insurance...but will your insurance cover you? The answer: MAYBE. In most cases, you will have coverage only if, in your altered state of mind, you had the forethought to forget about your injuries, lost vehicle, childcare and missed work, and take a number of arbitrary steps.

"miss-and-run" accident is one in which there is no physical contact between the vehicle holding the injured party and the vehicle that caused the accident, and there is no way to identify the driver of the vehicle that caused the accident. These accidents were once deemed covered by law, as long as the other driver's involvement was corroborated by an independent witness. [Wis. Stat. § 632.32(2)(g)2 (2009-10)]. The law served to provide coverage for legitimate cases where an accident was caused by a "phantom driver" (the individual causing the miss-and-run), and weed out cases where the phantom driver's existence could not be verified. It already excluded a number of legitimate cases (i.e., where a phantom driver did exist but no witness was available to corroborate), in hopes of limiting coverage to those where proof existed of the phantom driver.

In 2011, as part of a "tort reform" bill, the legislature repealed Truth In Auto, taking away coverage for these types of accidents and stating that insurance companies did not have to provide coverage for miss-and-run accidents unless a few are steps are taken. [2011 Assembly Bill 4 (4, 8-9)]. If you are involved in a miss-and-run accident with a phantom driver, the best chance of obtaining coverage under your uninsured motorist policy is to take these measures:

1. Track down any witnesses at the scene. Get the names, addresses, and contact information of any witnesses at the scene. In order to get coverage for a "miss-and-run" an independent witness (one who is not making a claim for underinsured motorist coverage resulting from the same accident) must verify the facts of the accident and the existence of the phantom driver. If a friend or family member comes to the scene, ask them to take down information of anyone who may have observed the accident, as the police do not always have time to speak with witnesses before they leave the scene. [Wis. Stat. § 632.32(2)(g)(2)(a) (2011-12)].

2. Report the accident to the police within 72 hours. This is very important-especially in cases of neck or back pain, because your symptoms may not arise immediately upon impact, and if the damage to your vehicle is not substantial you may think it is unimportant to call the police immediately. Additionally, there can be cases in which an injured individual is unconscious, undergoing surgery or otherwise unable to report the accident within the first seventy-two hours-in these instances, a family member or friend should make sure the police have been called. Remember, it is not enough to report the facts of the accident to your emergency room physician the accident must be reported to the police so that there is a formal record of the incident. [Wis. Stat. § 632.32(2)(g)(2)(b) (2011-12)].

3. File a statement, under oath, with your insurance company within 30 days of the accident. Your statement must note that you have a cause of action for damages against a phantom driver, and clearly explain the facts of the accident. Filing this statement is imperative to preserving your claim for uninsured motorist coverage. If you are unsure how to fulfill this step or would like assistance, you may want to consider contacting a personal injury attorney as soon as possible, but definitely before the end of those 30 days. If you are physically unable to contact an attorney, a friend or family member may want to reach out on your behalf, to ensure that these timelines are met. [Wis. Stat. § 632.32(2)(g)(2)(c) (2011-12)].

One important question that often comes up in these cases is whether it is actually a "miss-and-run" (in which the above must be taken to preserve your claim), or if it is a "hit-and-run" in which coverage is granted more broadly. On its face, this seems to be an easy question-if contact is involved, it would seem to be considered a "hit-and-run" and if no contact is involved, it would seem to be a "miss-and-run." Unfortunately, the law does not provide an easy answer in this area. For instance, if your car makes contact with only a piece of the phantom driver's vehicle and it is that piece that causes the collision, then your accident likely would not be considered a miss-and-run, but rather a hit-and-run, as physical contact did occur. Likewise, if the phantom driver hit the car in front of you who, in turn, hit your vehicle, the case would also likely be considered a hit-and-run. However, if a phantom driver's car makes physical contact with another car and you swerve to avoid the accident (but you do not make physical contact with either driver), the case wouldlikely be considered a miss-and-run as your car did not make contact with the phantom driver's vehicle. It is clear to see that miss-and-run accidents involve both legal and fact-based inquiries that are best conducted by an attorney.

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