Appeal from SUPERIOR COURT SPOKANE COUNTY. Superior Court No: 93-2-00478-2. Date filed in Superior Court: 11/9/94. Superior Court Judge signing: MARCUS KELLY.
Author: Ray E. Munson, Concurring: Philip J. Thompson, Dissenting: Dennis J. Sweeney
MUNSON, J.--Farmers Insurance Company contends the sufficiency of the corroborating evidence of an accident involving a phantom vehicle raises a question of coverage to be decided by the courts. The court determined the issue was a factual one proper for resolution by arbitration. We reverse.
Ivan Frederickson claims he was driving on a highway in northern California after dark. The road had many sharp curves. Mr. Frederickson drove around a curve and suddenly came upon logs or cut firewood on the highway. He was unable to stop before striking the logs. He lost control of his car which went off the road. He suffered personal injuries and his car was damaged as a result of the accident.
Mr. Frederickson's vehicle was insured by Farmers. The policy underinsured motorist provision included coverage for accidents caused by a phantom vehicle:
3. Underinsured motor vehicle means:
b. A hit-and-run vehicle or phantom vehicle whose operator or owner cannot be identified and which hits or which causes an accident resulting in bodily injury or property damage without physical contact with:
(1) You or any family member.
(3) Your insured vehicle.
c. When there is no physical contact, . . . the accident must also be verified by someone other than you or another person having an underinsured motorist claim for the same accident.
The policy also includes an arbitration clause. Mr. Frederickson provided an affidavit from a woman who lives in the area where the accident occurred and, although she did not see the accident, states the road is used by loggers and persons cutting firewood, the road has a number of sharp curves where the accident occurred, and it would be unlikely wood in the road could have fallen from nearby trees. He also provided an affidavit from a California State Claims Officer who looked at the scene of the accident, reviewed the California Highway Patrol accident report, and concluded the sharp curves in the roadway would reduce visibility and the wood in the road would not likely have fallen from adjacent trees.
Farmers denied coverage, claiming there was insufficient evidence of negligence by an unknown vehicle and there was no evidence corroborating Mr. Frederickson's claims. Farmers commenced this action, seeking a declaration the accident is not covered under Mr. Frederickson's insurance policy. Mr. Frederickson counterclaimed, contending the issue of Farmers' liability should be submitted to arbitration. The trial court denied Farmers motion for summary judgment on the issue of coverage ...