Allied Fidelity Ins. Co. v. Lamb
| Citation | 361 N.E.2d 174,57 Ind.Dec. 36 |
| Decision Date | 31 March 1977 |
| Docket Number | No. 1--1176A218,1--1176A218 |
| Parties | ALLIED FIDELITY INSURANCE COMPANY, Defendant-Appellant, v. Randy LAMB, Plaintiff-Appellee. |
| Court | Court of Appeals of Indiana |
Charles F. Robinson, Jr., John W. Hammel, Linda Y. Hammel, Yarling, Tunnel, Robinson & Lamb, Indianapolis, John R Kenley, McFaddin & McFaddin, Rockville, for defendant-appellant.
Wallace, Campbell, Bunch & Shamback, Covington, Clelland J. Hanner, Rockville, for plaintiff-appellee.
This is an appeal from a judgment of the Parke County Circuit Court entered against defendant-appellant, Allied Fidelity Insurance Company (Allied), in an action by plaintiff-appellee, Randy Lamb, seeking recovery under the uninsured motorist provision of an automobile insurance policy issued by Allied.
The facts concerning the accident from which this claim arose are virtually undisputed. On May 24, 1974, at approximately 11:30 A.M., Peggy Simmons, accompanied by her cousin, Wanda Lamb and Mrs. Lamb's twin ten-month old daughters, Rebecca and Jennifer, was driving her parents' 1965 Buick Wildcat in a northerly direction on Highway 63 in Vermillion County, Indiana. While proceeding along Highway 63, the Simmons automobile passed an unidentified semi-trailer truck traveling in the southbound lane. As the car and truck passed, a rock crashed through the car's windshield striking Rebecca Lamb in the head. Rebecca subsequently died from the head injuries inflicted by the rock. The southbound truck, its driver apparently unaware of the accident, did not stop. Neither the truck nor its driver had been identified or located since the accident.
At the time of the accident, the Simmons automobile was covered under an insurance policy issued by Allied. Randy Lamb, Rebecca's father, initiated this suit on July 31, 1974, to recover under the policy's hit-and-run automobile coverage provided in the uninsured motorist clause, the pertinent terms of which are as follows:
'Coverage 1--Family Protection Damages for Bodily Injury: To pay all sums which the insured or his legal representative shall be legally entitled to recover as damages from the owner or operator of an uninsured motor vehicle because of bodily injury, sickness or disease, including death resulting therefrom hereinafter called 'bodily injury', sustained by the insured, caused by accident and arising out of the ownership maintenance or use of such uninsured motor vehicle provided, for the purposes of this coverage, determination as to whether the insured or such representative is legally entitled to recover such damages, and if so the amount thereof, shall be made by agreement between the insured or such representative and the company or, if they fail to agree, by arbitration.'
'Definitions: . . .
"insured' means:
(a) the named insured and any relative;
(b) any other person while occupying an insured automobile; and
(c) any person with respect to damages he is entitled to recover because of bodily injury to which this part applies sustained by an insured under (a) or (b) above.
Trial by jury commenced on May 18, 1976, and a verdict was returned against Allied in the amount of $15,000.00. Judgment was entered accordingly, and, thereafter, Allied perfected this appeal.
Allied contends that the judgment of the trial court is contrary to law in that the trial court erroneously concluded that Lamb was entitled to recover under the uninsured motorist clause of the Simmons policy. Allied maintains that it is entitled to judgment as a matter of law because: (1) the claimant, Lamb, failed to show the occurrence of 'physical contact'; and (2) the evidence is insufficient to show that Lamb was legally entitled to recover damages from the operator/owner of the hit-and-run automobile.
The uninsured motorist provision in the policy we are asked to construe defines hit-and-run automobile to be 'an automobile which causes bodily injury to an insured arising out of physical contact of such automobile with the insured or with an automobile which the insured is occupying . . ..' 1
In cases involving hit-and-run automobiles, this Court has determined that the occurrence of some type of 'physical contact' between the hit-and-run automobile, and the insured automobile is a condition precedent to recovery under a policy's uninsured motorist clause. Blankenbaker v. Great Central Ins. Co. (1972), 151 Ind.App. 693, 28 N.E.2d 496; Ely v. State Farm Mutual Automobile Ins. Co. (1971), 148 Ind.App. 586, 268 N.E.2d 316. We have also determined that the total absence of 'physical contact' is fatal to recovery. Ely, supra. Thus, the question posed is whether the 'physical contact' condition has been satisfied in the case at bar. If it has not, we must necessarily conclude that Allied is entitled to judgment as a matter of law.
The evidence presented clearly shows that the accident and resulting injuries were proximately caused by the propulsion of a rock through the automobile's windshield and not by a direct physical touching between the unidentified truck and the insured automobile. Allied asserts that the facts do not satisfy the 'physical contact' condition because 'physical contact', in its literal contractual meaning, contemplates a direct physical touching. Lamb, on the other hand, suggests that proper interpretation of the term 'physical contact' does not require direct physical touching, but is sufficiently satisfied by indirect physical contact.
Neither party contends that a direct physical touching between the hit-and-run automobile and the insured automobile occurred. Therefore, the existence of 'physical contact' depends upon our determination as to whether a continued transmission of force indirectly and contemporaneously through an intermediate object satisfies the condition.
Lamb relies upon a line of cases, espousing the indirect physical contact doctrine, in which the 'physical contact' condition was found to be satisfied when objects propelled by hit-and-run automobiles struck insured automobiles. Johnson v. State Farm Mutual Automobile Ins. Co. (1967), 70 Wash.2d 587, 424 P.2d 648; Barfield v. Insurance Co. of North America (1968), 59 Tenn.App. 631, 443 S.W.2d 482; Inter-Insurance Exchange of the Automobile Club of Southern California v. Lopez (1965), 238 Cal.App.2d 441, 47 Cal.Rptr. 834. An analysis of these cases, and others, allowing recovery upon a showing of indirect physical contact reveals that indirect physical contact is considered to be sufficient where: (1) the possibilities of fraud appear to be slight 2 and, (2) a causal connection between the hit-and-run automobile and the intermediate object exists.
This Court considered the applicability of the indirect physical contact doctrine in Blankenbaker v. Great Central Ins. Co., supra. In Blankenbaker, the insured sought recovery under the hit-and-run provision of his policy's uninsured motorist clause following an accident in which his automobile struck a tire and rim assembly lying on the highway. There was no explanation in Blankenbaker regarding where the tire and rim assembly came from, how it got there, or what happened to it after the accident. The possibilities of fraud under these circumstances were readily apparent. Judge Buchanan, finding no physical contact, stated that:
'In the case before us, no other vehicle was shown to be within the area of the accident. There was a total lack of evidence tending to establish a causal connection between some vehicle and this tire and rim assembly. The assembly was not shown to be a part of a hit-and-run automobile, which is essential to invoking the indirect physical contact doctrine. Consequently, there was no physical contact direct or indirect, with a hit-and-run 'automobile'. (Citation omitted). (Original emphasis).
'Even if it is assumed that the tire and rim assembly had momentarily come to rest after falling off an ongoing vehicle, contact by the camper-bus with it is too remote and disconnected to constitute contact with an (Our emphasis). Blankenbaker, supra at 702--703, 281 N.E.2d at 501--502.
Allied maintains that our rejection of the indirect physical doctrine in Blankenbaker is dispositive of the issue presented here. We disagree with this analysis. We are of the opinion that Blankenbaker should not be construed to be a blanket rejection of the indirect physical contact doctrine, but should be limited to the facts therein.
Blankenbaker is factually distinguishable from the case at bar. Here, a causal connection is established between the hit-and-run automobile and the intermediate propelled object. Here, the possibilities of fraud are remote. Here, there exists objective evidence from which the...
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