Under South Carolina law, insureds can receive the benefit of uninsured motorist coverage for injuries that are caused by a phantom driver, provided that the insured can establish three conditions set forth in S.C. Code Anno. §38-77-170. One of the three conditions requires that there either be physical contact with the unknown phantom vehicle or that the accident was witnessed by someone other than the owner or operator of the insured vehicle.
The witness must sign an affidavit establishing what was witnessed. In an interesting case, the South Carolina Supreme Court brought clarification to the statutory “witness” requirement when it considered whether a police officer who was investigating the drive-by shooting of the insured was a qualifying witness. In Estate of Silva v. Allstate Property & Casualty Insurance Co., 218 WL 41‑1084 (S.C. August 29, 2018) the estate of the decedent insured submitted the affidavit of a law enforcement officer who was conducting the official investigation of the accident and the drive‑by shooting incident. The affidavit of the investigating police officer stated that the pattern of the insured decedent’s injuries – that all five gunshots struck the insured decedent’s left side – indicated that the assailant drove alongside the decedent insured and then opened fire. The uninsured motorist claim was removed to federal court and the district court then certified the witness issue to the South Carolina Supreme Court.
The South Carolina Supreme Court found that the law enforcement officer’s affidavit did not satisfy the statutory witness requirement. The statute did not contain a definition of what a qualifying “witness” was. Therefore, the Court borrowed upon Black’s Law Dictionary, which defined “witness” in two different ways. Under one definition, a witness was someone who saw, knew or vouched for something. The Court found that the officer would not qualify as a witness under that standard. In the second definition, which defined witness as someone who gave testimony under oath or affirmation, the investigating officer would qualify. The South Carolina Supreme Court then determined that the first definition was more consistent with the statute’s purpose of thwarting fraudulent claims. Therefore, the investigating police officer was not a statutory qualifying witness.