(251) 299-0101

UIM Benefits - Phantom Motorist - Hearsay - Authentication

Dailey v. State Farm Mutual Automobile Ins. Co., [Ms. 2161069, Aug. 24, 2018] __ So. 3d __ (Ala. Civ. App. 2018). This per curiam opinion denies the plaintiff’s application for rehearing of the court’s no-opinion affirmance of a summary judgment entered by the St. Clair Circuit Court dismissing plaintiff’s claim for uninsured motorist benefits. Plaintiff claimed she was run off the road by an unidentified person driving a second motor vehicle. Ms. *2. Plaintiff did not report the accident to law enforcement for some ten days. Ibid.

State Farm moved for summary judgment citing a policy provision requiring that an accident involving an unidentified motorist be reported to police within 24 hours of the accident. Plaintiff argued that the provision in question was unenforceable as contrary to Alabama public policy and inconsistent with the UIM statute. Ms. *8. The court rejected this argument, citing Alabama Farm Bureau Mutual Casualty Insurance Company v. Cain, 421 So. 2d 1281 (Ala. Civ. App. 1982) in which the court reversed a judgment for the insured for uninsured motorist benefits arising from a hit-and-run accident where the insured had failed to report the accident to the police within 24 hours. See Ms. *10-11. The court rejected the insured’s public policy argument noting that § 32-10-5(a), Ala. Code 1975 requires that an accident with bodily injuries be reported “‘immediately by the quickest means of communication.’” Ms. *14.

The court also rejected the insured’s contention that the policy filed by State Farm in support of its motion for summary judgment was inadmissible hearsay. The court noted that the custodian’s affidavit that she was “custodian of the records pertaining to issuance of policies,” satisfied the requirement of Rule 803(6), Ala. R. Evid., that records be “kept in the course of the regularly conducted business activity [pursuant to] the regular practice of that business activity ....” Ms. *6. The court further held that “the certified policy attached to the affidavit had ‘distinctive characteristics’ that ‘constitute[d] a prima facie showing that the policy offered ... is likely authentic,’ which is ‘all that is required under Rule 901(a), Ala. R. Evid.’” Ms. *7, quoting Royal Ins. Co. of America v. Crowne Investments, Inc., 903 So. 2d 802, 809 (Ala. 2004).

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