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State Farm v. Nelson

For recovery under the uninsured motorist statute, there must be actual physical contact between the vehicle the unknown person operated and the person or the property of the insured, unless ' "the description by the claimant of how the occurrence occurred is corroborated by an eyewitness to the occurrence other than the claimant." '

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State Farm appeals following a jury trial in this wrongful death action filed after a car accident. The jury awarded plaintiffs $1,106,165.02 and found that one driver was 10 percent negligent and the John Doe driver was 90 percent negligent. State Farm enumerates as error the trial court’s denial of its motion for directed verdict and motion for j.n.o.v. State Farm also claims that the trial court erred in giving two jury charges and in allowing testimony that the John Doe driver was Hispanic. After reviewing the record, we conclude there was no error and affirm. This case arose after the truck that Matthew Muldoon was driving ran into the back of the car in which Cyrus Nelson was a passenger, killing Nelson. Nelson’s parents and the administrator of his estate filed a complaint for wrongful death against Muldoon and later amended their complaint to add claims against a John Doe defendant who was driving the vehicle in front of Muldoon and who swerved to the side immediately before the crash.

The evidence at trial, construed with every inference and presumption in favor of upholding the verdict,1 was that Nelson was riding in the backseat of a car driven by Sara Weichelsbaum. Weichelsbaum testified that she had stopped to turn left at an intersection and remained stopped because of oncoming traffic. As she glanced in her rearview mirror, she saw a car that “zoomed” around her and then saw Muldoon’s truck three or four car lengths behind her.

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