Summary
In Rohret v. State Farm Mutual Automobile Insurance Co., 276 N.W.2d 418 (Iowa 1979), this court held section 516A.1 authorized a policy clause such as that found in Orion's policy requiring physical contact when the tortfeasor motorist is not identified. 276 N.W.2d at 418.
Summary of this case from Claude v. Guaranty National Insurance CompanyOpinion
No. 61910.
March 21, 1979.
APPEAL FROM JOHNSON DISTRICT COURT, LEWIS W. SCHULTZ, J.
John T. Nolan, of Nolan, Lucas Nolan, Iowa City, for appellant.
Wayne C. Collins and Richard C. Garberson, of Shuttleworth Ingersoll, Cedar Rapids, for appellee State Farm.
Raymond R. Stefani, of Silliman, Gray Stapleton, Cedar Rapids, for appellee Hartford Accident Indemnity.
Considered by LeGRAND, P.J., and UHLENHOPP, HARRIS, McCORMICK and ALLBEE, JJ.
This appeal presents the question of whether our uninsured motorist statute authorizes a policy clause requiring physical contact when the third-party motorist is not identified. The legislature provided in the pertinent part of section 516A.1, The Code 1977:
No automobile liability or motor vehicle liability insurance policy insuring against liability for bodily injury or death arising out of the ownership, maintenance, or use of a motor vehicle shall be delivered or issued for delivery in this state with respect to any motor vehicle registered or principally garaged in this state, unless coverage is provided in such policy or supplemental thereto, for the protection of persons insured under such policy who are legally entitled to recover damages from the owner or operator of an uninsured motor vehicle or a hit-and-run motor vehicle because of bodily injury, sickness, or disease, including death resulting therefrom, caused by accident and arising out of the ownership, maintenance, or use of such uninsured motor vehicle, or arising out of physical contact of such hit-and-run motor vehicle with the person insured or with a motor vehicle which the person insured is occupying at the time of the accident. (Emphasis added.)
The statute thus requires coverage in two situations: when the damage arose out of (1) "the ownership, maintenance, or use of such uninsured motor vehicle" or (2) "physical contact of such hit-and-run motor vehicle."
In this case plaintiff Rose Ann Rohret was an "insured" under automobile policies of defendants State Farm and Hartford Accident Indemnity. She sued those insurers on their policies alleging that she was injured when the car in which she was riding went off the road to avoid colliding with an oncoming car, that the two cars did not collide, and that the oncoming car continued on and was never identified. The insurers moved for judgment on the pleadings on the ground that no physical contact occurred. The trial court gave judgment in accordance with the motions. Rohret appealed.
Rohret is right that we read the statute into the policies. Benzer v. Iowa Mutual Tornado Insurance Association, 216 N.W.2d 385, 388 (Iowa 1974). She is also right that our statute is "double barreled," as she puts it; the statute covers accidents with uninsured motorists and with unidentified motorists when physical contact occurs. She must bring her case within one or the. other of the two alternatives. She does not allege and has no way of proving under the first alternative that the third-party motorist was uninsured. She does not allege under the second alternative that physical contact occurred; on the contrary, she alleges contact did not occur. In this predicament she places primary emphasis on the first alternative; she claims that in the case of a non-contact unidentified motorist, a presumption arises that the motorist was uninsured. Hence she argues she can have recovery under the "uninsured motorist" clause, citing DeMello v. First Insurance Co., 55 Haw. 519, 523 P.2d 304 (1974).
While other courts have not found that such a presumption arises, e.g., Lenngren v. Travelers Indemnity Co., 26 Misc.2d 1084, 1085, 203 N.Y.S.2d 136, 137 (Sup. Ct. 1960), aff'd mem., 20 A.D.2d 850, 249 N.Y.S.2d 400 (1964), the primary difficulty with Rohret's reliance on DeMello is that the Hawaii and Iowa statutes are different. Three main types of statutes exist in this area. Clark v. Regent Insurance Co., 270 N.W.2d 26, 28 (S.D. 1978); see also 11 Creighton L.Rev. 222, 223 n. 6 (1977). One type requires insurance coverage simply as to uninsured motorists, and Hawaii falls within this general category. A number of states with such statutes have indeed held that their statutes require coverage of damage caused by an unidentified motorist without contact. Among these decisions are State Farm Fire Casualty Co. v. Lambert, 291 Ala. 645, 285 So.2d 917 (1973); Farmers Insurance Exchange v. McDermott, 34 Colo. App. 305, 527 P.2d 918 (1974); Brown v. Progressive Mutual Insurance Co., 249 So.2d 429 (Fla. 1971), rev'g 229 So.2d 645 (Dist.Ct.App. 1969); DeMello v. First Insurance Co., 55 Haw. 519, 523 P.2d 304 (1974); Montoya v. Dairyland Insurance Co., 394 F. Supp. 1337 (D.N.M. 1975); and Webb v. United Services Automobile Association, 227 Pa. Super. 508, 323 A.2d 737 (1974). But most states with such statutes hold the other way. Among such decisions are Balestrieri v. Hartford Accident Indemnity Insurance Co., 112 Ariz. 160, 540 P.2d 126 (1975), vacating 22 Ariz. App. 255, 526 P.2d 779 (1974); Ward v. Consolidated Underwriters, 259 Ark. 696, 535 S.W.2d 830 (1976); Rosnick v. Aetna Casualty Surety Co., 172 Conn. 416, 374 A.2d 1076 (1977); Ely v. State Farm Mutual Automobile Insurance Co., 148 Ind. App. 586, 268 N.E.2d 316 (1971); Jett v. Doe, 551 S.W.2d 221 (Ky. 1977) (statute allowed insurance company to define uninsured); Collins v. New Orleans Public Service, Inc., 234 So.2d 270 (La.Ct. of App. 1970); Ward v. Allstate Insurance Co., 514 S.W.2d 576 (Mo. 1974); Buckeye Union Insurance Co. v. Cooperman, 33 Ohio App.2d 152, 293 N.E.2d 293 (1972); Smith v. Allstate Insurance Co., 224 Tenn. 423, 456 S.W.2d 654 (1970); Phelps v. Twin City Fire Insurance Co., 476 S.W.2d 419 (Tex.Civ.App. 1972); and Amidzich v. Charter Oak Fire Insurance Co., 44 Wis.2d 45, 170 N.W.2d 813 (1969).
A second type of statute requires coverage as to uninsured motorists and hit-and-run motorists. Here again the courts are divided. Some hold that these statutes provide mandatory coverage as to the unidentified motorist although contact does not occur. State Farm Mutual Automobile Insurance Co. v. Abramowicz, 386 A.2d 670 (Del. 1978), aff'g 369 A.2d 691 (Super.Ct. 1977); State Farm Mutual Automobile Insurance Co. v. Maryland Automobile Insurance Fund, 277 Md. 602, 356 A.2d 560 (1976); Halseth v. State Farm Mutual Automobile Insurance Co., 268 N.W.2d 730 (Minn. 1978); Soule v. Stuyvesant Insurance Co., 116 N.H. 595, 364 A.2d 883 (1976); Biggs v. State Farm Mutual Automobile Insurance Co., 569 P.2d 430 (Okla. 1977); Clark v. Regent Insurance Co., 270 N.W.2d 26 (S.D. 1978); Doe v. Brown, 203 Va. 508, 125 S.E.2d 159 (1962); Hartford Accident Indemnity Co. v. Novak, 83 Wn.2d 576, 520 P.2d 1368 (1974). Some decisions uphold a policy requirement of physical contact under these statutes. Prosk v. Allstate Insurance Co., 82 Ill. App.2d 457, 226 N.E.2d 498 (1967); Grace v. State Farm Mutual Automobile Insurance Co., 197 Neb. 118, 246 N.W.2d 874 (1976); Hendricks v. United States Fidelity Guaranty Co., 5 N.C. App. 181, 167 S.E.2d 876 (1969).
Iowa falls within the third type of statute, found in a few states: mandatory coverage as to uninsured motorists and also as to hit-and-run motorists where physical contact occurs. The courts which have considered claims under such statutes have enforced the physical contact requirement in the unidentified motorist situation such as we have here. Orpustan v. State Farm Mutual Automobile Insurance Co., 7 Cal.3d 988, 103 Cal.Rptr. 919, 500 P.2d 1119 (1972); State Farm Mutual Automobile Insurance Co. v. Carlson, 130 Ga. App. 27, 202 S.E.2d 213 (1973); Basilia v. Aetna Insurance Corp., 38 Mich. App. 260, 195 N.W.2d 893 (1972) (mem.); Smith v. Great American Insurance Co., 29 N.Y.2d 116, 324 N.Y.S.2d 15, 272 N.E.2d 528 (1971); Coker v. Nationwide Insurance Co., 251 S.C. 175, 161 S.E.2d 175 (1968). The court stated as the rationale in Orpustan, 7 Cal.3d at 994, 103 Cal.Rptr. at 923, 500 P.2d at 1123:
The statute makes proof of physical contact a condition precedent in every case for the recovery of damages caused by an unknown vehicle. There are no exceptions. If it is advisable that the statute be changed, the solution lies within the province of the Legislature. The court has no right to legislate the proviso from the statute or emasculate its application under the guise of judicial interpretation. (Emphasis added.)
A commentator stated regarding statutes of the Iowa type:
A legislative variety of the uninsured motorist statute most nearly paralleling the standard endorsement has been adopted in only a handful of states, and enumerates three conditions precedent to recovery. [The first requirement is] that the bodily injury must arise out of physical contact [emphasis in original] of the automobile with the insured or with an automobile which the insured is occupying. . . . By detailing the conditions of recovery with this high degree of specificity and by statutorily defining as coextensive the statute's and endorsement's scopes of coverage, the interpretive flexibility necessary to find a conflict between the physical contact provision and the statute's underlying policy considerations is effectively withdrawn from the judiciary. [Emphasis added.] Collins, The Uninsured Motorist Statute and the Phantom Vehicle: A View From the Southwest, 43 Ins. Counsel J. 358, 361 (1976).
We endeavor to avoid rendering any part of a statute superfluous, and we consider all parts together. Hanover Insurance Co. v. Alamo Motel, 264 N.W.2d 774, 778 (Iowa 1978). If we held that this case comes within the first clause as to "uninsured motorists" we would read the physical contact requirement of the second clause out of the statute, yet the legislature must have inserted the requirement of physical contact for a purpose. See Annot., 25 A.L.R.3d 1299.
We conclude that Rohret cannot bring herself within the coverage for want of physical contact.
The trial court was right in sustaining the motions.
AFFIRMED.