Abramowicz v. State Farm Mut. Auto. Ins. Co.

• Decision Date: 24 January 1977
• Citation: 369 A.2d 691
• Parties: Helen ABRAMOWICZ, Plaintiff, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, an Illinois Corporation, Defendant.
• Court: Delaware Superior Court

Page 691

369 A.2d 691

Helen ABRAMOWICZ, Plaintiff, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, an Illinois

Corporation, Defendant.

Superior Court of Delaware, New Castle County.

Submitted Nov. 30, 1976.

Decided Jan. 24, 1977.

On defendant's motion for summary judgment.

E. Leigh Hunt, of Abramo, Hunt & Abramo, Wilmington, for plaintiff.

Morton R. Kimmel, of Kimmel, Spiller & Bradley, Wilmington, for defendant.

STIFTEL, President Judge.

Plaintiff filed a declaratory judgment action against her insurer to recover under the uninsured motorist provision of her automobile insurance policy. Defendant insurer denied coverage and filed this motion for summary judgment.

Plaintiff's action results from injuries allegedly suffered by her when an automobile she occupied as a passenger was forced off the roadway by an unidentified motor vehicle. As a result, the vehicle in which plaintiff rode struck several parked cars causing her injuries. Both parties agree there was no physical contact between the unidentified vehicle and the vehicle which plaintiff occupied.

Plaintiff was insured by defendant at the time of the accident. As required by 18 Del.C. § 3902, the insurance policy provided uninsured motorist coverage for injury caused by an uninsured or hit-and-run motor vehicle.

Insurer has denied coverage, asserting that since the statute did not define a hit-and-run motor vehicle, the insurance policy's definition must be applied. The policy provided that 'uninsured' motor vehicle included 'hit-and-run' motor vehicle and that a 'hit-and-run' motor vehicle was:

'. . . a motor vehicle which caused an accident resulting in bodily injury to an insured or property damage arising out of physical contact of such motor vehicle with the person or property of the insured or with a motor vehicle which the insured is occupying at the time of the accident . . .'.

This definition required physical contact between the unidentified motor vehicle and the insured for coverage to exist. Thus, reasoned insurer, no coverage could exist where, as here, there was no contact. The issue, which is of first impression in this jurisdiction, is whether the insurance policy's physical contact limitation is more restrictive than the mandate of 18 Del.C. § 3902, and thus, void as against public policy.

Defendant has cited numerous authorities which support its contention that the insurance policy's physical contact requirement is not void as against public policy. Indeed, the bulk of authority supports defendant's position. This Court, however, is not inclined to adopt this reasoning with its attendant results. The more recently developed minority view, which has been appearing in more and more jurisdictions, provides reasoned and equitable results that are more in keeping with the purposes of uninsured motorist protection.

Uninsured motorist protection is an area of automobile insurance coverage almost universally regulated by statute. An examination of this area must perforce begin with the existing statute. 18 Del.C. § 3902, states, in pertinent part:

'No policy insuring against liability arising out of the ownership, maintenance or use of any motor vehicle shall be delivered or issued for delivery in this State with respect to any such vehicle registered or principally garaged in this State unless coverage is provided therein or supplemental thereto for the protection of persons insured thereunder who are legally entitled to recover damages from owners or operators of uninsured or hit-and-run motor vehicles for bodily injury, sickness or disease, including death, or personal property damage resulting from the ownership, maintenance or use of such uninsured or hit-and-run motor vehicle. Except, that no such coverage shall be required in or supplemental to a policy where rejected in writing, on a form furnished by the insurer describing the coverage being rejected, by an insured named therein, or upon any renewal of such policy unless the coverage is then requested in writing by the named insured. The coverage herein required may be referred to as 'uninsured vehicle coverage."

This statute does not specifically require physical contact for hit-and-run uninsured motorist coverage to inure, but it does specifically require coverage for both uninsured and hit-and-run motor vehicles. In these two particulars, it is identical to the statutes of Illinois, North Carolina, Washington and New Hampshire. These jurisdictions have produced a divergence of authority which is most representative of the unsettled nature of this area of the law.

The holding of Prosk v. Allstate Insurance Co., 82 Ill.App.2d 457, 226 N.E.2d 498, 25 A.L.R.3d 1294 (1967), has become the leading authority supporting the majority position. There, the Court affirmed a lower court's grant of insurer's motion for judgment on the pleadings. Plaintiffs sought coverage under the uninsured motorist provision of their automobile insurance policy for injuries they allegedly sustained when their automobile was forced off the roadway by an unknown vehicle, causing them to strike a parked truck.

Plaintiffs argued that the insurance policy's requirement of physical contact was an attempt to dilute and diminish the uninsured motorist protection mandated by the statute. The Court agreed with the plaintiffs that a policy provision would be void as contrary to public policy where it diluted or diminished the statute; however, the Court did not agree that such was the case before it. As it stated:

'After considering the arguments of both sides and the authorities cited, including out-of-state pronouncements, we have concluded that there is no conflict between the statutory term 'hit-and-run motor vehicle' and the policy requirement of 'physical contact of such automobile'. The language of the statute is clear and unambiguous, and the legislative intent can be ascertained from its provisions without resort to other aids for construction . . . We find that the...