In a motor vehicle accident action involving an uninsured driver, the OPCF 44‑R insurer brought a motion for summary judgment seeking a declaration that the insured driver was at least one percent at fault, which would remove the insurer from liability under the Negligence Act.
The court held that credibility issues and conflicting testimony regarding the circumstances of the collision required a trial, applying the “full appreciation test” articulated in Combined Air Mechanical Inc. v. Flesch.
The written record and cross‑examinations created genuine issues requiring trial, particularly regarding the drivers’ credibility and the sequence of events at the intersection.
The summary judgment motion was dismissed.
The insurer was awarded costs of an abandoned motion brought by another defendant and obtained a contingent declaration concerning the priority of insurance coverage for damages exceeding $200,000.
