Adams v. Mr. Zajac

• Decision Date: 20 October 1981
• Docket Number: Docket No. 49929
• Citation: 313 N.W.2d 347,110 Mich.App. 522
• Parties: Lolita ADAMS, Administratrix of the Estate of Tommy W. Adams, Deceased, Plaintiff-Appellant, v. MR. ZAJAC, L.C.L. Transit Company, a foreign corporation, Defendants, and Richard Austin, Secretary of State, and Director of the State of Michigan MotorVehicle Accident Claims Fund, Defendant-Appellee. 110 Mich.App. 522, 313 N.W.2d 347
• Court: Court of Appeal of Michigan — District of US

Page 347

313 N.W.2d 347

Lolita ADAMS, Administratrix of the Estate of Tommy W Adams, Deceased, Plaintiff-Appellant, v. MR. ZAJAC, L.C.L. Transit Company, a foreign corporation Defendants and Richard Austin, Secretary of State, and Director of the State of Michigan MotorVehicle Accident Claims Fund, Defendant-Appellee.

Docket No. 49929.

110 Mich.App. 522, 313 N.W.2d 347

Court of Appeals of Michigan.

Oct. 20, 1981.

Released for Publication Dec. 22, 1981.

[110 MICHAPP 525] Sommers, Schwartz, Silver & Schwartz, P. C. by Jeffrey N. Shillman, Southfield, for plaintiff-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., and Joseph B. Bilitzke and Edgar L. Church, Jr., Asst. Attys. Gen., for defendants-appellees Secretary of State and Director of the State of Michigan Motor Vehicle Accident Claims Fund.

Before HOLBROOK, P. J., and BRONSON and WALSH, JJ.

HOLBROOK, Presiding Judge.

Plaintiff commenced this action for wrongful death against defendants Zajac and L.C.L. Transit Company alleging that they were responsible for her husband's death and against the Secretary of State pursuant to the hit-and-run provision of the Michigan Motor Vehicle Accident Claims Act (MVACA). M.C.L. § 257.1112; M.S.A. § 9.2812. Motions for accelerated judgment and summary judgment were granted in favor of Zajac and L.C.L. Transit Company, respectively. The grant of these motions is not an issue in this appeal. The trial court granted the Secretary of State's motion to dismiss on the grounds that there was no "physical contact" between Adams' vehicle and the unidentified vehicle. It is from this order that plaintiff appeals as of right.

Tommy W. Adams was killed when the truck he was operating went out of control and plunged into a creek after either striking or swerving to avoid striking a truck tire and rim assembly. The tire was between the right and middle lanes on northbound Interstate 75 near Newport. A witness to the accident was driving directly in front of decedent's vehicle. When he came upon the tire, he swerved to the right and avoided the tire. He stated that prior to coming upon the tire he saw a flatbed tractor-trailer parked along the freeway [110 MICHAPP 526] where he first observed the tire. Simultaneous with the accident, the witness observed the flatbed truck pulling away from the scene. Another witness, going southbound, also observed a flatbed tractor-trailer leaving the scene of the accident. The tire and rim assembly was retrieved by the police.

M.C.L. § 257.1112; M.S.A. § 9.2812 allows the Secretary of State to be sued by any person who would have a cause of action against an unidentified owner or driver of a motor vehicle which causes death of or personal injury to any person. In any action commenced under this act, physical contact between the unidentified vehicle and a vehicle occupied by the claimant is a condition precedent to such action.

The MVACA is remedial in nature and should be liberally construed. Dillon v. Secretary of State, 61 Mich.App. 588, 233 N.W.2d 96 (1975), lv. den. 397 Mich. 812 (1976). One of the purposes of the act is to provide a remedy to the victim of an unidentified hit-run driver. Johnson v. Secretary of State, 406 Mich. 420, 280 N.W.2d 9 (1979). The physical contact provision is designed to prevent fraudulent claims. The purpose of the language is to reduce the possibility of phantom vehicle claims which result when a motorist who negligently loses control of his own vehicle is able to recover by alleging that an unknown vehicle caused him to lose control. Kersten v. DAIIE, 82 Mich.App. 459, 267 N.W.2d 425, lv. den. 403 Mich. 845 (1978).

Because of the remedial nature of this act, and because the possibility of fraud is minimal, "physical contact" has been given a wider meaning than a strict interpretation would require. Lord v. Auto-Owners Ins. Co., 22 Mich.App. 669, 177 N.W.2d 653 (1970). Physical contact has been construed to [110 MICHAPP 527] include situations where no direct contact occurs. The most common circumstances in which recovery is permitted is when (1) the hit-and-run vehicle strikes a second or intervening vehicle which in turn is propelled into plaintiff's vehicle, Lord, supra, and (2) an object is propelled into the plaintiff's vehicle by another vehicle which does not stop. Barfield v. Ins. Co. of North America, 59 Tenn.App. 631, 443 S.W.2d 482 (1968), Allied Fidelity Ins. Co. v. Lamb, Ind.App., 361 N.E.2d 174 (1977). Contra, Smith v. Great American Ins. Co., 29 N.Y.2d 116, 324 N.Y.S.2d 15, 272 N.E.2d 528 (1971). Courts have found that the purpose and intent of the physical contact requirement is served by accepting as sufficient a substantial but indirect physical contact with the claimant's vehicle, although not of the exact nature described in the statute.

It appears to us that accepting as sufficient a substantial physical contact between a part of the unidentified vehicle itself and the complainant's vehicle, as in the present case, involves considerably less of a departure from the act than was permitted in Lord, supra.

We would have no difficulty with this case were it not for the holding in Kersten, supra. That case involved a hit-and-run claim based on facts similar to those in the instant case. After an extensive case analysis, a panel of this Court found that "(r)ecovery is permitted where the...