COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 66970 SALWA GIRGIS : ACCELERATED DOCKET : Plaintiff-appellee : : JOURNAL ENTRY -vs- : AND : OPINION STATE FARM MUTUAL AUTOMOBILE : INSURANCE CO. : PER CURIAM : Defendant-appellant : : DATE OF ANNOUNCEMENT : OF DECISION : JAN. 23, 1997 CHARACTER OF PROCEEDING : Civil appeal from Court of Common Pleas : Case No. CV-234822 JUDGMENT : Reversed and remanded. DATE OF JOURNALIZATION : APPEARANCES: FOR PLAINTIFF-APPELLEE: FOR DEFENDANT-APPELLANT: David W. Goldense, Esq. Joseph R. Wantz, Esq. Paul Wolf, Esq. 2121 Superior Building 920 Terminal Tower 815 Superior Avenue, N.E. Cleveland, Ohio 44113 Cleveland, Ohio 44114 -2- PER CURIAM: In Girgis v. State Farm Mut. Auto. Ins. Co. (Dec. 1, 1994), Cuyahoga App. No. 66970, unreported, this court upheld a ruling that a "physical contact" requirement in an automobile insurance policy is unenforceable. Noting that this decision conflicted with the decision of the Court of Appeals of Lucas County in August v. Lightning Rod Mut. Ins. Co. (1992), 82 Ohio App.3d 25, we certified Girgis to the Supreme Court of Ohio for clarification. The Supreme Court accepted certification on February 6, 1995. The precise issue addressed by the Supreme Court in Girgis v. State Farm Mut. Auto. Ins. Co. (1996), 75 Ohio St.3d 302 "is whether an automobile insurance policy requiring actual physical contact between the unidentified vehicle and either the insured or the insured's vehicle as an absolute prerequisite to recovery comports with public policy." Id., 305. The court found that the physical contact requirement is contrary to public policy, but the inquiry does not cease at this point. Rather, "the test that ought 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 testimony that the negligence of an unidentified vehicle was a proximate cause of the accident." (Emphasis added.) Id. (Travelers Indemn. Co. v. Reddick [1974], 37 Ohio St.2d 119; Yurista v. Nationwide Mut. Ins. Co. [1985], 18 Ohio St.3d 326; State Auto. Mut. Ins. Co. v. Rowe [1986], 28 Ohio St.3d 143, modified.) The application of this test protects an -3- insured from the "harsh effect of an irrebuttable presumption ***." Id., 307. In the case below, plaintiff Salwa Girgis and defendant State Farm Mutual Automobile Insurance Company ("State Farm") stipulated that Girgis was involved in an automobile accident. While Girgis claimed that an unidentified party caused the accident through an improper lane change, State Farm found no evidence of "contact" in its investigation. State Farm, therefore, declined to provide Girgis uninsured motorist coverage because there was no evidence of physical contact, a prerequisite to "hit-and-run" coverage under the applicable policy of insurance. The only issue argued in the trial court was whether the "physical contact" requirement contravened the then current version of R.C. 3937.18 and the analysis offered by State Farm Ins. Co. v. Alexander (1992), 62 Ohio St.3d 397. Girgis submitted in a trial brief that if the requirement was invalid, all that would need to be proven is that the "roll-over accident occurred as a result of the negligence of a would-be tortfeasor." However, Girgis' trial brief reveals that she alone was going to testify at trial and the record is otherwise silent as to what type of proof Girgis possessed except her own eyewitness account of the accident. Furthermore, the trial court granted Girgis' pretrial motion for judgment, declaring only that the "physical contact" requirement was invalid. Whether corroborating evidence existed in support of Girgis' tortfeasor claim was thus not considered by -4- the trial court. Girgis was, therefore, not entitled to judgment based exclusively upon the unreasonableness of the requirement. The Supreme Court of Ohio in Girgis, 75 Ohio St.3d 302, concluded its opinion with the following order: "We reverse the judgment of the court of appeals and remand this cause to the trial court for further proceedings consistent with this opinion." (Emphasis added.) Id., 307. In accordance with this order, this case is remanded to the trial court for a determination of whether Girgis's uninsured motorist claim can survive the corroborative evidence test, specifically whether she can "prove through independent third-party testimony that an unidentified vehicle was a proximate cause of the accident for which [she] seeks recovery." Id. Judgment reversed and cause remanded. -5- It is ordered that appellant recover of appellee its costs herein taxed. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the Common Pleas Court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. JAMES D. SWEENEY, PRESIDING JUDGE SARA J. HARPER, JUDGE DAVID T. MATIA, JUDGE N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc. App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E), unless a motion for reconsideration with supporting brief, per App.R. 26(A) is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement .