Summary
In Rowe, Carolyn Rowe and Peter Stefanisn were injured when the vehicle in which they were passengers was struck by a car that had swerved to avoid a third, unidentified vehicle.
Summary of this case from Girgis v. State Farm Mut. Auto. Ins. Co.Opinion
No. 85-2000
Decided December 24, 1986.
Insurance — Motor vehicles — R.C. 3937.18 does not require coverage for injuries caused by unidentified motorists — "Actual physical contact" may be required by uninsured motorist clause of automobile liability policy.
O.Jur 3d Insurance § 953.
An automobile liability insurance policy which provides coverage against injuries caused to an insured by an unidentified motorist may, consistent with R.C. 3937.18 and public policy, include a provision requiring actual physical contact between the insured or the vehicle occupied by him and the unidentified vehicle. ( Travelers Indemnity Co. v. Reddick, 37 Ohio St.2d 119 [66 O.O.2d 259], approved and followed.)
APPEAL from the Court of Appeals for Cuyahoga County.
On July 1, 1979, appellants, Carolyn Rowe and Peter Stefanisn, were injured when an automobile operated by Donald R. Stefanisn, and in which they were riding as passengers, was struck by a second automobile driven by Robert Rutkosky. Rutkosky, to avoid hitting a third automobile that had suddenly pulled into his lane, caused his vehicle to swerve across the center line and come in contact with the Stefanisn automobile. The third automobile and its driver, having had no physical contact with either the Rutkosky or the Stefanisn vehicles, left the scene without being identified.
Appellants were both insureds under an insurance policy issued to their driver, Donald Stefanisn, by appellee, State Automobile Mutual Insurance Company. Pursuant to the uninsured motorist coverage of this policy, appellants filed a claim with appellee to recover for their uncompensated damages. This coverage provided protection for damages caused by the owner or operator of an "uninsured automobile." An "uninsured automobile" is defined in the policy as:
The parties stipulated that after receiving limited compensation, both appellants entered into a covenant not to sue with Robert Rutkosky.
"* * * (a) an automobile * * * with respect to the ownership, maintenance or use of which there is, in at least the amounts specified by the financial responsibility law of * * * [Ohio] * * *, no bodily injury liability bond or insurance policy applicable at the time of the accident * * * or
"(b) a hit-and-run automobile * * *."
A "hit-and-run automobile" is defined in the policy as:
"* * * an automobile which causes bodily injury to an insured arising out of the physical contact of such automobile with the insured or with an automobile which the insured is occupying at the time of the accident, provided: (a) there cannot be ascertained the identity of either the operator or the owner of such `hit-and-run automobile' * * *." (Emphasis added.)
Appellee denied the claim on the basis that there had been no "physical contact" between the Stefanisn automobile and the unidentified automobile as required by the hit-and-run definitional clause. After appellants demanded arbitration of their claim, appellee filed suit in the Court of Common Pleas of Cuyahoga County seeking a declaratory judgment to determine the applicability of the uninsured motorist coverage. Upon motion, the trial court granted summary judgment to appellee. The court of appeals affirmed the judgment of the trial court.
In reaching its decision, the court of appeals first examined the hit-and-run clause of the policy in light of this court's holdings in Travelers Indemnity Co. v. Reddick (1974), 37 Ohio St.2d 119 [66 O.O.2d 259], and Yurista v. Nationwide Mut. Ins. Co. (1985), 18 Ohio St.3d 326. Reasoning, in accordance with those two cases, that a physical-contact requirement is a valid provision within the hit-and-run clause and that there was no physical contact between the Stefanisn vehicle and the unidentified vehicle, the court found that appellants were not injured by an "uninsured automobile" as defined in the hit-and-run clause. The court then addressed appellants' argument that they were covered under the uninsured automobile definitional clause (a) of the policy coverage in question since the unidentified vehicle could not be shown to have "applicable" insurance coverage. In considering this argument of appellants, the court of appeals reasoned that the definitional clauses had to be interpreted in reference to each other. The court said that because the hit-and-run clause was intended to cover unidentified or runaway vehicles, the uninsured automobile clause (a) could only logically be intended to cover identified, but uninsured, vehicles. The court concluded that because appellants did not meet the requirements for coverage as defined in the hit-and-run clause, and because uninsured automobile clause (a) was inapplicable to unidentified vehicles, appellants were precluded from recovery under the uninsured motorist provisions of the policy.
The cause is now before this court pursuant to the allowance of a motion to certify the record.
Cronquist, Smith, Marshall Weaver and Jack F. Smith, for appellee.
Nurenberg, Plevin, Heller McCarthy Co., L.P.A., and Anne L. Kilbane, for appellants.
The initial issue presented in this case is whether an uninsured motorist liability policy clause that requires "physical contact" between the insured or the vehicle occupied by him and the vehicle of an unidentified motorist, as a condition of coverage, abrogates R.C. 3937.18 or contravenes public policy. We hold that it does not.
R.C. 3937.18 provides, in pertinent part:
"(A) No automobile * * * policy of insurance * * * shall be * * * issued for delivery in this state with respect to any motor vehicle registered * * * in this state unless both of the following are provided:
"(1) Uninsured motorist coverage * * *.
"(2) Underinsured motorist coverage * * *."
The uninsured motorist policy provisions provided coverage for insureds who suffer injury caused by motorists without insurance. The policy also provided coverage where the offending vehicle was unidentified providing there was actual physical contact with the insured or the automobile the insured was occupying.
Given a literal reading, the terms of R.C. 3937.18 mandate only that coverage be extended for injuries caused by identified uninsured (and underinsured) motorists. While public policy may require that insurers provide coverage to insureds who are injured by hit-and-run motorists, R.C. 3937.18 does not require coverage for injuries caused by unidentified motorists. Therefore, because the insurance policy in this case provided, in addition to the basic mandated uninsured coverage, coverage for injuries caused by an unidentified motorist, the policy actually provided more protection than that required by statute. The "physical contact" limitation set forth in the hit-and-run clause is, therefore, neither a violation of R.C. 3937.18 nor of public policy.
Accordingly, we are constrained to follow this court's holding in Reddick, supra, where we specifically held:
"An uninsured motorist provision of an automobile liability insurance policy which provides protection to one injured by a `hit-and-run' automobile, but which restricts coverage to accidents where the injury results from physical contact of the unidentified vehicle with the insured or the automobile occupied by him, is compatible with R.C. 3937.18 and the public policy evidenced by its adoption." See, also, Yurista, supra.
Appellants argue, in the alternative, that an insured who is caused injury by an unidentified motorist, but is precluded from recovering under the "hit-and-run" clause because there was no physical contact with the unidentified motorist's vehicle, can recover under the uninsured automobile definitional clause (a) in the policy. In applying a plain-meaning interpretation to the words used in this policy, it is evident that clause (a) was intended to apply only to identified, uninsured motorists. The contract between the parties simply does not insure against injuries caused by unidentified motorists in the absence of physical contact. To read such coverage into this policy would require us to rewrite the contract of the parties and this we are not permitted or prepared to do. See Hedrick v. Motorists Mut. Ins. Co. (1986), 22 Ohio St.3d 42, 44. Thus, an automobile liability insurance policy which provides coverage against injuries caused to an insured by an unidentified motorist may, consistent with R.C. 3937.18 and public policy, include a provision requiring actual physical contact between the insured or the vehicle occupied by him and the unidentified vehicle. Travelers Indemnity Co. v. Reddick, supra, is approved and followed.
Accordingly, we conclude that appellants cannot recover under these uninsured motorist policy definitional clauses because the injury was not caused by an identified uninsured motorist nor was there any physical contact between the insureds or the vehicle they were occupying and the vehicle of an unidentified motorist.
The judgment of the court of appeals is affirmed.
Judgment affirmed.
CELEBREZZE, C.J., LOCHER, HOLMES and WRIGHT, JJ., concur.
SWEENEY and C. BROWN, JJ., dissent.
The factual basis of this case is uncontroverted. An unidentified automobile suddenly veered into the path of Robert Rutkosky. Rutkosky caused his automobile to swerve across the center line to avoid a collision whereupon his automobile subsequently struck the car in which appellants, Carolyn Rowe and Peter Stefanisn, were passengers. This resulted in injuries to Rowe and Stefanisn.
The majority today holds that a "physical contact" requirement in the unidentified motorist provision of an insurance contract does not violate R.C. 3937.18 or public policy. Because I believe that the physical impact requirement is clearly in opposition to R.C. 3937.18, public policy, logic and common sense, I dissent from the decision reached today.
I take issue with the narrow definition of "hit-and-run" which the majority decision finds acceptable. "Hit-and-run" is a euphemistic expression which covers any accident where the tortfeasor leaves the scene of the accident after its occurrence, rather than face the consequences of his act. To allow the label "hit-and-run" to swallow the broader concept for which it stands, is to allow the triumph of form over substance. This I refuse to do.
The policy underlying the physical impact requirement was set forth in Travelers Indemnity Co. v. Reddick (1974), 37 Ohio St.2d 119, 124 [66 O.O.2d 259], wherein this court stated that "[t]he purpose of the requirement is obvious — to provide an objective standard of corroboration of the existence of an `hit-and-run' vehicle to prevent the filing of fraudulent claims."
Such a policy is both an anachronism and a slap in the face of every juror who is not trusted to weigh all the testimony presented and to carry out his function by arriving at what he believes to be the truth as to the existence of the hit-and-run driver. The aforementioned policy declares every trier of fact to be incapable of determining whether a "hit-and-run" motorist actually was involved in the accident and whether such a claim is fraudulent. This policy is repugnant to our system of justice.
Even if one accepts the validity of such a policy, the physical contact rule of Reddick established a rigid, irrebuttable presumption which has no sound legal justification. See Yurista v. Nationwide Mut. Ins. Co. (1985), 18 Ohio St.3d 326, 330 (Clifford F. Brown, J., dissenting). In the case at bar, for example, the corroborative evidence consists of the uncontested testimony of a disinterested eyewitness. Yet, in spite of the fact that all of the parties are in agreement as to exactly what happened and that there is no indication of fraud in this claim, the innocent victims are left without a remedy. As I stated in my dissent in Yurista, supra, at 331, the corroborative-evidence test "will alleviate the present fundamental unfairness which has developed under the physical contact requirement. * * * The corroborative-evidence test maintains * * * [the policy concern of Reddick] while eliminating the requirement that physical contact occur in every case before an injured party can recover." Not only do many other jurisdictions agree, but the corroborative-evidence test has been adopted by various courts of appeals in this state.
See Yurista, supra, at 331, fn. 1 (Clifford F. Brown, J., dissenting), for a non-exclusive list of such jurisdictions.
See, e.g., Progressive Cas. Ins. Co. v. Mastin (1982), 4 Ohio App.3d 86; Yurista v. Nationwide Mut. Ins. Co. (June 8, 1984), Ottawa App. No. OT 84-6, unreported, reversed (1985), 18 Ohio St.3d 326.
In Yurista (unreported), supra, for example, the available "corroborative evidence" included tiremarks, impact marks on a railroad tie and a police officer witness who reconstructed the accident scene from this evidence. Then Judge, now Justice Douglas, writing for the majority in Yurista at the court of appeals level, at 5-6, illustrated the ridiculous result of the physical impact requirement in a hypothetical factual scenario which, but for the direction in which the "hit-and-run" driver was moving, is virtually identical to the actual factual scenario of the instant action:
" Where such corroborative evidence exists, however, we believe the application of the `physical contact' requirement, whether direct or indirect, would work a fundamental unfairness and produce absurd results. The following example should suffice to demonstrate the consequences of applying the Travelers case to situations in which corroborative evidence exists. A driver, seeing a vehicle approach him in his lane, swerves to avoid a head-on collision and hits another vehicle or some other object but is denied coverage, pursuant to the `physical contact' requirement, notwithstanding the availability of several disinterested witnesses. In contemplating such a result, that the driver in that situation is punished for avoiding a more serious collision, we can only paraphrase Mr. Bumble in Dickens' Oliver Twist and think that if that is the law, then the law is `a ass.' We believe, however, that the law should never be `a ass' and, therefore, hold that where there is competent evidence of the existence of a `hit-and-run' vehicle, the lack of direct or indirect `physical contact' with that `hit-and-run' vehicle will not bar an otherwise meritorious claim under the insured motorists provision of an insurance policy." (Emphasis added, footnote omitted.)
Beyond this, the majority's reliance on Reddick is misplaced. The facts of Reddick contain a glaring inconsistency in relation to the facts of the case sub judice. In Reddick there was no disinterested witness, nor any other evidence to corroborate the existence of the "hit-and-run" vehicle. This is in stark contrast to the disinterested eyewitness who testified in the instant action. In fact, the parties are all in complete agreement as to the existence of the hit-and-run driver and his fault in this accident. Forthermore, Yurista was but a blind and misguided wholesale adoption of Reddick and its narrow, hyper-technical definition of "hit-and-run" without even the most basic analysis as to the significant policy and factual differences between Yurista and Reddick.
Automobile owners obtain "blanket protection" and place themselves in the "good hands" of insurance carriers to protect themselves from both accidents for which they are to blame and accidents in which they are only the innocent victims of the negligence of others. These consumers believe, and are led to believe, that they are fully covered for any damage which befalls their automobiles or their persons. The majority today allows these people, who rightfully expect that their paid insurance premiums will result in compensation for injuries, to be left with nothing but a lawsuit which the courts will not allow them to win and the unanswered question of "just what is the purpose of auto insurance?"
Because I cannot be a party to the tremendous injustice which the majority today perpetrates upon the innocent victims of hit-and-run automobile accidents, I dissent from that decision.
SWEENEY, J., concurs in the foregoing dissenting opinion.