[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as
Smith v. Erie Ins. Co., Slip Opinion No. 2016-Ohio-7742.]




                                         NOTICE
     This slip opinion is subject to formal revision before it is published in an
     advance sheet of the Ohio Official Reports. Readers are requested to
     promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65
     South Front Street, Columbus, Ohio 43215, of any typographical or other
     formal errors in the opinion, in order that corrections may be made before
     the opinion is published.



                         SLIP OPINION NO. 2016-OHIO-7742
     SMITH ET AL., APPELLEES, v. ERIE INSURANCE COMPANY, APPELLANT.
  [Until this opinion appears in the Ohio Official Reports advance sheets, it
  may be cited as Smith v. Erie Ins. Co., Slip Opinion No. 2016-Ohio-7742.]
Uninsured-motorist insurance—Unidentified vehicle in no-contact accident—
        Independent      corroborative     evidence—R.C.       3937.18(B)—Contract’s
        requirement of independent corroborative evidence can be met using
        evidence derived from the insured’s testimony.
    (No. 2015-1419—Submitted June 1, 2016—Decided November 16, 2016.)
     CERTIFIED by the Court of Appeals for Ottawa County, No. OT-15-005,
                                   2015-Ohio-3078.
                                 _________________
        PFEIFER, J.
        {¶ 1} In this case, we resolve a certified conflict regarding how uninsured-
motorist-contract language applies when an unidentified vehicle allegedly causes a
no-contact accident that results in an injury to an insured. Specifically, we address
the contract’s requirement that the insured present “independent corroborative
                             SUPREME COURT OF OHIO




evidence” that an unidentified vehicle caused the accident. We hold that the
contract’s requirement of independent corroborative evidence can be met using
evidence derived from the insured’s testimony.
              FACTUAL AND PROCEDURAL BACKGROUND
       {¶ 2} This action began with the filing of an insurance claim by appellees,
Scott L. Smith and Dawn M. Smith, with their insurer, appellant, Erie Insurance
Company (“Erie”), as the result of injuries suffered by Scott in an automobile
accident. Scott claimed that while he was driving his pickup truck south on
Plasterbed Road in Ottawa County, Ohio, late in the evening of July 25, 2011, a
northbound vehicle crossed left of center, causing Scott to swerve his truck off the
road into several trees. Scott said that the vehicles did not make physical contact
and that the other driver fled the scene.
       {¶ 3} Scott called 9-1-1 and reported that a “dark colored SUV” had caused
the accident. There were no other witnesses to the accident. The other driver and
vehicle were never identified, and no physical evidence confirmed the presence of
another vehicle in Scott’s lane of travel.
       {¶ 4} An Ohio State Highway Patrol trooper responded to Scott’s call. The
trooper took photos of the accident scene and completed an accident report.
Relying solely upon Scott’s statement, the trooper’s report stated that Scott’s
vehicle “was southbound on Plasterbed Road” when it “swerved to avoid an
unknown northbound vehicle that was left of center. [Scott’s vehicle] went off the
right side of the road and struck several small trees.” The pictures that were taken
by the trooper and attached to the accident report depicted a red pickup truck that
appeared to have crashed into some trees. The report, including the diagram that
the trooper drew of the roadway, stated that Smith was driving on a flat, dry stretch
of road and was approaching a T-intersection with Schiewe Road.
       {¶ 5} Scott was treated for injuries from the crash at an emergency room
and later received physical therapy. The medical and therapy reports describing




                                             2
                                January Term, 2016




Scott’s injuries as resulting from an accident caused by another vehicle’s forcing
him off the road were based solely upon Scott’s statements to that effect.
       {¶ 6} Scott filed a claim seeking uninsured-motorists (“UM”) coverage
under the policy that he and his wife had with Erie. Erie denied the claim.
       {¶ 7} The Smiths filed a lawsuit against Erie seeking a declaration that they
were entitled to UM coverage from Erie for the accident, and both parties moved
for summary judgment. The trial court granted summary judgment to Erie, holding
that a provision in the policy requiring the insureds to provide “independent
corroborative evidence” that the unknown driver caused the injury meant that the
Smiths had to submit evidence, independent of Scott Smith’s own testimony,
corroborating that the accident was caused by an unknown motorist, which they
failed to do. The particular policy provision states:


         “Uninsured motor vehicle” means a “motor vehicle:”
         ***
               3. which is a hit-and-run “motor vehicle.” The identity
         of the driver and owner of the hit-and-run vehicle must be
         unknown and there must be independent corroborative evidence
         that the negligence or intentional acts of the driver of the hit-and-
         run vehicle caused the bodily injury. Testimony of [the insured]
         seeking recovery does not constitute independent corroborative
         evidence, unless the testimony is supported by additional
         evidence.


(Boldface sic; emphasis added.) There is no dispute that the term “hit-
and-run” applies to situations in which there is no “hit”—that is, where
there is no contact between the vehicles.
       {¶ 8} The policy does not define the term “additional evidence.”




                                            3
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       {¶ 9} The Smiths appealed.        The appellate court held that the policy
language


       is susceptible of at least two interpretations; one in which the
       “additional evidence” must be independent, third party evidence not
       derived from the insured (Erie's interpretation), and another in which
       the “additional evidence” may consist of items of evidence, such as
       medical records and police reports, that are based on the testimony
       of the insured (appellants’ interpretation).


Smith v. Erie Ins. Co., 2015-Ohio-3078, 36 N.E.3d 214, ¶ 30 (6th Dist.).
       {¶ 10} Because the policy language was susceptible of more than one
interpretation, the court found it “ambiguous regarding the evidentiary
requirements for uninsured motorist benefits”; since it was ambiguous, the court
construed the provision strictly against the insurer and liberally in favor of the
insured. Id. at ¶ 32, citing King v. Nationwide Ins. Co., 35 Ohio St.3d 208, 519
N.E.2d 1380 (1988), syllabus.
       {¶ 11} In construing the ambiguity in favor of the Smiths, the court of
appeals concluded that the “additional evidence” required by the policy may consist
of items of evidence, such as medical records and police reports, that are based on
the testimony of the insured.       The court reversed the trial court’s summary
judgment. The court noted that its decision conflicted with the decision of the
Twelfth District Court of Appeals in Brown v. Philadelphia Indemn. Ins. Co., 12th
Dist. Warren No. CA2010-10-094, 2011-Ohio-2217. In Brown, similar contract
language was at issue, but the court held that the insured did not present the requisite
“additional evidence” that his injuries were caused by an unidentified vehicle.




                                           4
                                January Term, 2016




               Instead, the evidence he presented merely repackaged the
        statements he made to the police who investigated the incident or to
        his treating physician. Since the police and Brown’s physician were
        merely relying on Brown's account of the incident, the evidence
        Brown presented in opposition to Philadelphia’s summary judgment
        motion cannot constitute additional evidence.


Id. at ¶ 28.
        {¶ 12} The court of appeals sua sponte certified a conflict with Brown. On
review, this court determined that a conflict exists and ordered the parties to brief
the following issue:


               The subject of the conflict is the uninsured motorist
        provision in an auto insurance policy, which states that the
        testimony of an insured seeking recovery of uninsured motorist
        benefits does not constitute independent corroborative evidence as
        required by the policy, unless the testimony is supported by
        additional evidence. The question to be resolved is whether the
        policy language is ambiguous leading to an interpretation in favor
        of the insured that any evidence apart from the insured’s testimony,
        either derived from the insured’s testimony or not, is sufficient to
        constitute “additional evidence” under the policy, or whether the
        policy is unambiguous and the “additional evidence” must be
        independent of, and not derived from, the insured’s testimony.


144 Ohio St.3d 1406, 2015-Ohio-4947, 41 N.E.3d 445.




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                             SUPREME COURT OF OHIO




                             LAW AND ANALYSIS
       {¶ 13} In Girgis v. State Farm Mut. Auto. Ins. Co., 75 Ohio St.3d 302, 662
N.E.2d 280 (1996), paragraph one of the syllabus, this court declared that public
policy precluded contract provisions in insurance policies that required physical
contact between an insured’s vehicle and the uninsured vehicle as a prerequisite to
UM coverage for an accident.
       {¶ 14} In Girgis, an unidentified driver swerved into the insured’s lane,
causing the insured to swerve off the road and crash. The insured filed a claim with
her insurer, State Farm, seeking UM coverage for the hit-and-run accident. State
Farm refused coverage based on its determination that there had been no physical
contact between the insured’s vehicle and any other vehicle; the policy required
such contact as a prerequisite to recovery.
       {¶ 15} This court held that it was against public policy to require the insured
to prove physical contact in order for the insured to proceed with a UM claim for
such an accident. Id. at paragraph one of the syllabus. This court stated that
“[w]hile objective standards [such as the physical-contact requirement] have the
advantage of being easy to apply, their application does not always do justice to
injured claimants.” Id. at 306.
       {¶ 16} Although Girgis did away with the physical-contact requirement and
replaced it with the corroborative-evidence test, that test also created a difficult
burden for insureds to overcome in order to recover benefits pursuant to the
uninsured-motorist provisions of their automobile-insurance policies for
noncontact accidents caused by unknown drivers. This court held:


               The test to be applied in cases where an unidentified driver’s
       negligence causes injury is the corroborative evidence test, which
       allows the claim to go forward if there is independent third-party




                                         6
                                January Term, 2016




       testimony that the negligence of an unidentified vehicle was a
       proximate cause of the accident.


Id. at paragraph two of the syllabus.
       {¶ 17} After Girgis, the General Assembly amended R.C. 3937.18, the
uninsured-motorist statute, recognizing that an insured could gain coverage under
a UM policy even in a no-contact unidentified-vehicle accident case.           2001
Am.Sub.S.B. No. 97, 149 Ohio Laws, Part I, 779, 780-781. R.C. 3937.18(B)
contains the definition of uninsured motorist. Notably, R.C. 3937.18(B) does not
track Girgis; rather, the statute requires independent corroborative evidence, but
states that the insured’s own testimony supported by additional evidence can
constitute independent corroborative evidence. R.C. 3927.18(B) states:


       For purposes of any uninsured motorist coverage included in a
       policy of insurance, an “uninsured motorist” is the owner or operator
       of a motor vehicle if any of the following conditions applies:
          ***
       (3) The identity of the owner or operator cannot be determined, but
       independent corroborative evidence exists to prove that the bodily
       injury, sickness, disease, or death of the insured was proximately
       caused by the negligence or intentional actions of the unidentified
       operator of the motor vehicle. For purposes of division (B)(3) of
       this section, the testimony of any insured seeking recovery from the
       insurer shall not constitute independent corroborative evidence,
       unless the testimony is supported by additional evidence.


(Emphasis added.)




                                          7
                             SUPREME COURT OF OHIO




       {¶ 18} Like the Philadelphia Indemnity Insurance Company policy
analyzed by the Twelfth District Court of Appeals in Brown, 2011-Ohio-2217, the
policy at issue here tracks the language of R.C. 3937.18(B)(3). In interpreting the
policy language, we keep in mind that “[a]n insurance policy is a contract; in
interpreting contracts, courts must give effect to the intent of the parties, and that
intent is presumed to be reflected in the plain and ordinary meaning of the contract
language.” Granger v. Auto-Owners Ins., 144 Ohio St. 3d 57, 2015-Ohio-3279, 40
N.E.3d 1110, ¶ 20.
       {¶ 19} The policy language in this case is less restrictive to insureds than
this court was in Girgis. The policy at issue states that there can be recovery of
UM benefits in the following circumstances:


       The identity of the driver and owner of the hit-and-run vehicle must
       be unknown and there must be independent corroborative evidence
       that the negligence or intentional acts of the driver of the hit-and-
       run vehicle caused the bodily injury.


But the policy language immediately following makes clear that third-party
testimony on causation is not required:


       Testimony of [the insured] seeking recovery does not constitute
       independent corroborative evidence, unless the testimony is
       supported by additional evidence.


       {¶ 20} The policy thus states that the insured’s testimony can constitute
“independent corroborative evidence.” The insured’s own testimony constitutes
independent corroborative evidence if that testimony is supported by additional
evidence. That is a big difference from Girgis. Unlike Girgis, this insurance policy




                                          8
                                 January Term, 2016




does not require “third-party testimony that the negligence of an unidentified
vehicle was a proximate cause of the accident,” 75 Ohio St.3d 302, 662 N.E.2d 280,
paragraph two of the syllabus.
       {¶ 21} Instead, the policy requires only additional evidence—not
necessarily third-party testimony—supporting the causation testimony of the
insured. The policy does not say “additional testimony” and it certainly does not
say “independent third-party testimony.” The evidence need be only additional and
supportive.   A police report that describes a straight, dry roadway and that
references no impairment of the driver and no finding of excessive speed could
provide additional evidence that supports the insured’s testimony. A transcript of
insured’s conversation with a 9-1-1 operator immediately following the accident—
when the insured was in peril—could provide additional evidence supporting the
insured’s testimony. Statements made to a police officer—for which an insured
could face criminal liability if they were knowingly false, see R.C. 2917.32(A)(3)
and (C)—could constitute additional evidence that supports the testimony of the
insured.
       {¶ 22} The additional evidence need not go to proximate cause. It must
support the insured’s testimony regarding proximate cause.            Support is an
exceedingly broad concept.
       {¶ 23} The insurer included the insured’s own testimony—as long as it is
supported by additional evidence—within the definition of “independent
corroborative evidence.” That was more generous language than this court set forth
in Girgis, and the insurer may now wish it had not included it in the policy; but
policy language controls this case, and it allows the insured to move past summary
judgment and present this matter to the trier of fact.
       {¶ 24} We hold that the language at issue is certainly susceptible of the
interpretation that any evidence apart from the insured’s testimony, either derived
from the insured's testimony or not, is sufficient to constitute “additional evidence”




                                          9
                             SUPREME COURT OF OHIO




under the policy. Even if the policy language can also be interpreted to mean that
the “additional evidence” must be independent of, and not derived from, the
insured’s testimony, “[w]here provisions of a contract of insurance are reasonably
susceptible of more than one interpretation, they will be construed strictly against
the insurer and liberally in favor of the insured.” King, 35 Ohio St. 3d 208, 519
N.E.2d 1380, syllabus.
                                 CONCLUSION
       {¶ 25} Accordingly, we resolve the conflict in favor of the interpretation of
the Sixth District Court of Appeals. We therefore affirm the judgment of the court
of appeals and remand the cause to the trial court.
                                                                 Judgment affirmed
                                                               and cause remanded.
       O’CONNOR, C.J., and LANZINGER and O’NEILL, JJ., concur.
       KENNEDY, J., dissents, with an opinion joined by O’DONNELL and FRENCH,
JJ.
                               _________________
       KENNEDY, J., dissenting.
       {¶ 26} Because the contract at issue here is not susceptible of more than one
reasonable interpretation, I dissent. The contract prohibits the use of the insured’s
testimony as “independent corroborative evidence” of a no-contact accident,
permitting only independent evidence as the “additional evidence” necessary for
coverage for a no-contact accident under the insured’s uninsured-motorist (“UM”)
insurance provisions. Just as clearly, the contract does not permit the insured’s
repackaged testimony in another medium to serve as independent additional
evidence of such an accident. Therefore, I would reverse the judgment of the court
of appeals and reinstate the trial court’s grant of summary judgment in favor of
appellant, Erie Insurance Company.




                                         10
                                January Term, 2016




       {¶ 27} Insurance policies are contracts governed by the agreement of the
parties and contract law. However, “insurance policies cannot be read in an overly
circumscribed fashion.” Sauer v. Crews, 140 Ohio St.3d 314, 2014-Ohio-3655, 18
N.E.3d 410, ¶ 13, citing Gomolka v. State Auto. Mut. Ins. Co., 70 Ohio St.2d 166,
172, 436 N.E.2d 1347 (1982). Contract language alleged to be ambiguous must be
examined in context:


               Although ambiguous provisions in an insurance policy
         must be construed strictly against the insurer and liberally in
         favor of the insured, it is equally well settled that a court cannot
         create ambiguity in a contract where there is none. Ambiguity
         exists only when a provision at issue is susceptible of more than
         one reasonable interpretation.


(Citations omitted and emphasis added.) Lager v. Miller-Gonzalez, 120 Ohio St.3d
47, 2008-Ohio-4838, 896 N.E.2d 666, ¶ 16.
       {¶ 28} Prior to our decision in Girgis v. State Farm Mut. Auto. Ins. Co. in
1996, insurance contracts did not provide UM coverage for no-contact accidents
because policies required insureds to submit proof that their vehicles had made
contact with another vehicle before the insureds could file a claim for UM coverage
(“the contact rule”). 75 Ohio St.3d 302, 662 N.E.2d 280 (1996), syllabus. In
Girgis, we considered the validity of this rule. We recognized that “ ‘[t]he purpose
of the [the contact rule was] to provide an objective standard of corroboration of
the existence of [another vehicle] to prevent the filing of fraudulent claims.’ ”
(Emphasis added.) Id. at 306, quoting Travelers Indemn. Co. v. Reddick, 37 Ohio
St.2d 119, 124, 308 N.E.2d 454 (1974). But we determined that “[a]dherence to
the physical contact requirement effectively deprives insured individuals of any
recovery under uninsured motorist coverage even when independent third-party




                                          11
                              SUPREME COURT OF OHIO




testimony is available. It strikes us that this is precisely the sort of situation against
which uninsured motorist coverage was designed to protect.” Id. Therefore, we
supplanted the contact rule with another form of objective evidence—“independent
third-party testimony”—to corroborate that an unknown person who had fled the
accident was the proximate cause of the insured’s accident. Id. at 305. We
reasoned, “This will ameliorate the harsh effect of an irrebuttable presumption and
allow an insured to prove through independent third-party testimony that an
unidentified vehicle was a proximate cause of the accident for which the insured
seeks recovery.” Id. at 307. The upshot of Girgis was that an insured could seek
UM coverage for a no-contact accident caused by an unknown driver, but only if
there was third-party testimony that the unknown driver’s negligence caused the
insured’s accident.
        {¶ 29} Not long after Girgis, the General Assembly amended R.C. 3937.18.
R.C. 3937.18(B) now states:


         For purposes of any uninsured motorist coverage included in a
         policy of insurance, an “uninsured motorist” is the owner or
         operator of a motor vehicle if any of the following conditions
         applies:
             ***
         (3) The identity of the owner or operator cannot be determined,
         but independent corroborative evidence exists to prove that the
         bodily injury, sickness, disease, or death of the insured was
         proximately caused by the negligence or intentional actions of
         the unidentified operator of the motor vehicle. For purposes of
         division (B) (3) of this section, the testimony of any insured
         seeking recovery from the insurer shall not constitute




                                           12
                                January Term, 2016




         independent corroborative evidence, unless the testimony is
         supported by additional evidence.
(Emphasis added.) Echoing Girgis at 306, R.C. 3937.18(B) declared that the
insured’s testimony alone was not independent corroborative evidence that could
support an uninsured motorist’s claim that his or her accident was caused by a non-
contact accident. While R.C. 3937.18(B) expanded what could be counted as
additional evidence to include “independent corroborative evidence” besides third-
party testimony, the statute nevertheless still requires objective evidence.
       {¶ 30} The Erie policy at issue here essentially tracks the statutory
language:


         “Uninsured motor vehicle” means a “motor vehicle:”
         ***
               3. which is a hit-and-run “motor vehicle.” The identity
         of the driver and owner of the hit-and-run vehicle must be
         unknown and there must be independent corroborative evidence
         that the negligence or intentional acts of the driver of the hit-and-
         run vehicle caused the bodily injury. Testimony of [the insured]
         seeking recovery does not constitute independent corroborative
         evidence, unless the testimony is supported by additional
         evidence.


(Boldface sic and emphasis added.)
       {¶ 31} The two sentences quoted above should be analyzed separately. The
first sentence requires an insured to provide “independent corroborative evidence”
that an unknown driver’s negligence or intentional act caused the accident. The
next sentence declares that the insured’s testimony does not by itself constitute
independent corroborative evidence.




                                          13
                            SUPREME COURT OF OHIO




       {¶ 32} Because an insured’s testimony can never be “independent
corroborative evidence,” it is a truism that the insured’s testimony repackaged in a
police or medical record cannot be “independent corroborative evidence.”
       {¶ 33} The second sentence provides the qualifier. Only if “additional
evidence” exists—i.e., evidence in addition to the insured’s testimony—will the
insured have the “independent corroborative evidence” needed to support a claim
for UM coverage under the policy. The only reasonable interpretation of the second
sentence when considered in conjunction with the first is that “additional evidence”
cannot include the insured’s testimony.
       {¶ 34} The majority does not define “additional evidence.” Instead, it
declares that “additional evidence” is evidence that “need only be additional and
supportive,” concluding that the insured’s repackaged testimony is sufficient.
However, that interpretation is unreasonable when the provision of the Erie policy
is construed as a whole.
       {¶ 35} “Additional” means “existing or coming by way of addition,” and
“addition” means “something added that improves or increases value.” Webster’s
Third New International Dictionary 24 (1986). “Additional evidence” therefore
must be evidence that supplements, rather than repeats, the insured’s testimony.
Consequently, “additional evidence” can only mean evidence that is distinct from
the insured’s testimony. To hold otherwise ignores the meaning of the policy
provision and R.C. 3937.18(B). See Brown v. Philadelphia Indemn. Ins. Co., 12th
Dist. Warren No. CA2010-10-094, 2011-Ohio-2217, ¶ 21-22.
       {¶ 36} In support of his UM claim for a no-contact accident, Smith
submitted a transcript of his 9-1-1 call, the trooper’s accident report, and medical
reports. All these documents described Smith’s injuries as resulting from an
accident caused by another vehicle’s forcing him off the road. However, in each
case, the conclusion is based solely upon Smith’s statements to that effect.
Therefore, these reports were merely a repackaging of Smith’s testimony, not




                                          14
                                January Term, 2016




additional evidence independent of his testimony. See Brown at ¶ 27-28 (accident
report and affidavit from an officer that relied solely on the statement of the insured
is not additional evidence, because the officer did not witness the accident and there
was no other evidence to support the insured’s assertion); compare Jackson v. State
Farm Mut. Auto. Ins. Co., 4th Dist. Pike No. 14CA850, 2015-Ohio-1131, ¶ 28
(testimony of passenger who corroborated insured’s testimony about a red truck
was sufficient “additional evidence” to defeat insurance company’s summary-
judgment motion on issue whether the insured was involved in a no-contact
accident).
       {¶ 37} Here, there were no other witnesses to the accident, the other driver
and vehicle were never identified, and there was no physical evidence such as
debris or skid marks that would tend to corroborate Smith’s version of events.
Accordingly, Smith did not submit “additional evidence” that was independent of,
and not derived from, his own assertions.
       {¶ 38} Therefore, I would reverse the judgment of the court of appeals and
reinstate the summary judgment in favor of Erie Insurance Company.
       O’DONNELL and FRENCH, JJ., concur in the foregoing opinion.
                                _________________
       Connelly & Collier, L.L.P., Steven R. Smith, Steven P. Collier, and Janine
T. Avila, for appellees.
       Eastman & Smith Ltd., D. Casey Talbott, Mark W. Sandretto, and Lindsey
K. Ohlman, for appellant.
       Freund, Freeze & Arnold, Kevin C. Connell, and Margaret A. Lennen,
urging reversal for amicus curiae Ohio Association of Civil Trial Attorneys.
       Vorys, Sater, Seymour & Pease, L.L.P., Thomas E. Szykowny, and Michael
Thomas, urging reversal for amicus curiae Ohio Insurance Institute.
       Cubbon & Associates Co., L.P.A., and James E. Yavorcik, urging
affirmance for amicus curiae Ohio Association of Justice.




                                          15
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