HIT & RUN ALIBI BEATS INADMISSIBLE TRAFFIC REPORT RESULTING IN DISMISSAL OF TORT DEFENDANT

Dylan J. Church

In Jones v Butt, et al (Unpub, COA No. 361532, August 17, 2023), the Michigan Court of Appeals addressed how an alleged negligent driver might support a motion for summary disposition where the evidence supporting the driver’s involvement in the accident is limited to inadmissible evidence, such as a UD-10 traffic crash report or an anonymous witness statement.

Plaintiff was involved in a hit-and-run accident and could only identify the other vehicle as a large, white van, possibly driven by a man. The responding officer completed a UD-10 traffic crash report identifying the striking vehicle as a “passenger car, SUV, van,” with no indication of the make, model, or color. The report listed a license plate number for the striking vehicle, as well as an address for the registered owner of the vehicle, although the officer testified that license plate number was written on a note by an anonymous witness, and the address was identified by a LIEN search of the license plate number. The address was the business address of Talal Kamran Butt. Although Mr. Butt did lease a 2018 Dodge Ram 1500 at the time of the accident, that truck had a different license plate number and was registered to Mr. Butt’s home address, not that of his business. Mr. Butt also provided a corroborated alibi that he was not involved in the accident.

The plaintiff eventually brought suit against Talal Kamran Butt, alleging that he negligently operated the vehicle that day. The plaintiff also brought suit against her own insurance company, State Auto, alleging entitlement to underinsured motorist (UIM) benefits through her own policy, beyond those provided through the liability insurance held by Mr. Butt.

The Court of Appeals found that both the UD-10 report and anonymous witness statement contained therein were inadmissible hearsay. The UD-10 report was inadmissible by statute, MCL 257.624(1), and the witness statement was hearsay, as it sought to introduce an out-of-court statement without any applicable exception to the hearsay rule. Moreover, while the witnesses note with the license plate number might qualify for a hearsay exception, such as a recorded recollection or business/public record maintained by the officer, in this case the officer did not actually keep the note and could not confirm how the information on the UD-10 came to be there.

Accordingly, the trial court should not have considered the UD-10 report or witness statement in ruling on Mr. Butt’s motion for summary disposition and without that evidence, the plaintiff’s proof that Mr. Butt’s vehicle was involved in the accident was limited to her own speculative testimony that she was struck by a large white truck that may have been driven by a man, the defendant’s admission that he had a white truck, and the defendant’s admission that he was driving between Illinois and Michigan around the time of the accident. In light of defendant’s corroborated alibi that he was not involved in an accident, the Court found plaintiff failed to satisfy her burden of establishing a genuine issue of material fact that defendant’s vehicle was involved in the accident. Defendant, therefore, was entitled to summary disposition.

The Court of Appeals further declined to address the merits of State Auto’s argument that its insurance policy language precluded payment of underinsured motorist (UIM) benefits unless and until the insurance policy limitations for the tort defendant’s vehicle had been exhausted. The Court noted that question was now moot because the issue of Mr. Butt’s potential tort liability was moot. “Without an identifiable tortfeasor, plaintiff’s claim for UM benefits has actualized and no judgment on this issue would have a practical legal effect.”