Hit-and-run victim Willie Jordan is no Sam Spade.
After being struck down in the parking lot of a Columbia liquor store, Jordan didn’t do enough sleuthing to discover the identity of the driver — despite the fact that the incident was captured on surveillance camera, witnessed by a group of bystanders and a clerk at the store told him the ne’er-do-well was a regular.
Jordan’s third-rate detective work spurred a trial judge to toss his claim for uninsured motorist coverage against his insurer, 21st Century North American Insurance Co. The judge found that the insurer was entitled to summary judgment because, under state law, Jordan was negligent for failing to ascertain the hit-and-run driver’s name.
But the state Court of Appeals reversed the trial judge’s ruling in a Dec. 13 opinion that puts Jordan back on track to going to trial in an attempt to get 21st Century to cover his hit-and-run damages, which include $31,000 in medical bills for shoulder surgery.
A unanimous three-judge panel held in a novel decision that while Jordan could have been a better sleuth, he did just enough after the incident “to satisfy the statutory requirement that he not be negligent in failing to identify the driver.”
Chief Judge James Lockemy, who wrote the opinion, added that state law “does not require the victim of an accident to do everything necessary to secure the identity of the driver.”
After a van backed into him and knocked him to the pavement, Jordan asked witnesses which way the driver fled and then spent 20 minutes trying to track her down. He also spoke with the liquor store clerk and discovered that the establishment had video of the driver, though he never watched the footage.
“These facts satisfy the scintilla standard, and a jury should determine whether Jordan’s actions rose to the level of negligence in failing to determine the identity of the driver at the time of the accident,” Lockemy wrote.
Jordan’s attorney, Pamela Mullis of the Mullis Law Firm in Columbia, noted in an interview that while the liquor store clerk had identified the offending driver as a regular, the clerk did not know the driver’s name. Mullis also said that while Jordan didn’t watch the surveillance video, he told police about its existence. An officer reportedly took pictures of the footage as part of his investigation, but Jordan has never seen the photos, according to Mullis.
“I don’t know that he [Jordan] remembers specifically whether he asked [for the video] on not,” she added. “All he wanted them to do was preserve it, which the clerk said she would.”
21st Century and its attorneys at McAngus Goudelock & Courie in Columbia, who did not respond to interview requests, had contended that Jordan torpedoed his own case not only by failing to name the driver but also because he initially told a police officer that he did not want to press charges.
“While [Jordan] may be applauded for his ‘thoughtful, careful, response’ in not wanting to bring criminal charges where he was unsure whether Jane Doe’s actions were intentional, it does nothing to allay his burden of proving he took reasonable steps to determine her identity,” the insurer argued in its final brief.
21st Century also asserted that the state Supreme Court’s decision in 1973’s Hart v. Doe supported the trial judge’s ruling in Jordan’s case.
But the Court of Appeals disagreed, finding that Hart was “easily distinguishable,” because the victim in that case had ample opportunity to speak with the hit-and-run driver because he stuck around for 20 or 30 minutes until an ambulance arrived. The driver in Jordan’s case left almost immediately.
During the summary judgment motion hearing at the trial court, 21st Century argued that Jordan had waited too long — four years — to produce an affidavit from a witness to the hit-and-run.
But Mullis contended on appeal that such witness affidavits are only necessary in so-called “non-contact cases” in which an unidentified driver swerves or does something that causes another driver to take evasive action and crash.
She believed that 21st Century was trying to expand the scope of the state Supreme Court’s 2002 decision in Collins v. Doe, which involved an uninsured and unidentified driver who failed to yield the right of way, causing two other vehicles to collide. The court held that the plaintiff in Collins had to file an affidavit from a third-party witness to the incident.
“But with Willie Jordan — he was a pedestrian, was physically hit by the vehicle himself so the affidavit requirement did not apply to our case,” Mullis wrote in an email. She added that 21st Century “chose the wrong case to pick the fight” over the affidavit requirement.
The seven-page decision is Jordan v. Doe (Lawyers Weekly No. 011-086-17). An opinion digest is available at sclawyersweekly.com.
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