Despite documentary evidence, insured’s testimony alone is sufficient to create an issue of fact to defeat summary judgment in an uninsured motorist case.

The defendant insurance carrier filed a motion for summary judgment as to the plaintiff/insured’s breach of contract cause of action arising from his claim for uninsured motorist benefits. The plaintiff/insured alleged he was in a car accident with an unknown driver who fled the scene. The defendant’s policy required that any hit-and-run accidents be reported to the police. The plaintiff/insured alleged at his deposition and in his answers to Requests for Admissions that he called the police after the hit-and-run accident but that the police never arrived at the scene. There was no police report of record. Further, the telephone carrier which provided the plaintiff/insured with the cell phone with which he allegedly called the police responded to a subpoena from the defendant that they had no records pertaining to that phone number. The district court determined that the plaintiff/insured’s testimony and discovery responses were sufficient to create an issue of fact and denied the defendant’s motion for summary judgment.

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