Amidzich v. Charter Oak Fire Ins. Co.

• Decision Date: 30 September 1969
• Docket Number: No. 146,146
• Parties: Michael AMIDZICH et al., Appellants, v. The CHARTER OAK FIRE INSURANCE CO., Respondent.
• Court: Wisconsin Supreme Court

Page 813

170 N.W.2d 813

44 Wis.2d 45

Michael AMIDZICH et al., Appellants, v. The CHARTER OAK FIRE INSURANCE CO., Respondent.

No. 146.

Supreme Court of Wisconsin.

Sept. 30, 1969.

This is an appeal from orders of the circuit court for Milwaukee county overruling the plaintiffs' demurrer to the defendant's plea in bar and denying the plaintiffs' alternative motion to dismiss the defendant's plea. This appeal arises out of a cause of action for damages. The plaintiff Florence Amidzich on June 18, 1966, was forced off U.S. Highway I--94 in Jefferson county and sustained injuries. For the purposes of this appeal, it appears agreed that the accident occurred exactly as alleged by the plaintiffs, i.e., that although there was no striking of the plaintiff's automobile, she was forced off the road by an unidentified vehicle which failed to stop at the scene. There were two witnesses to the accident, and it is conceded that the accident was not fabricated and the claim is not fraudulent.

Florence Amidzich was the named insured of an automobile liability insurance policy issued by the defendant, The Charter Oak Fire Insurance Company. That policy contained an uninsured motorist clause, the purpose of which was to extend coverage to the named insured in the event of damages resulting from an accident involving an uninsured vehicle. Coverage was also extended in the event of damages by a 'hit and run' automobile. The policy defined a 'hit and run' automobile as one:

'* * * 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 at the time of the accident.' (Emphasis supplied.)

The defendant interposed a plea in bar relying upon the 'physical contact' language and claimed that the coverage was not applicable where the 'hit and run' automobile had no actual physical contact with the insured or her vehicle.

The trial judge sustained the defendant's plea in bar and overruled the plaintiffs' demurrer to such plea and the plaintiffs' motion to dismiss the plea in bar. From these orders the plaintiffs have appealed.

S. Raymond Spitz, Milwaukee, for appellants.

Ames, Riordan, Crivello & Sullivan, Milwaukee, for respondent.

HEFFERNAN, Justice.

The essence of the appellants' argument is that the phrase, 'physical contact,' as used in the insurance policy is ambiguous and that in view of such ambiguity a proper construction would provide coverage in a situation where an insured is forced off the road by another motor vehicle without the occurrence of an actual collision. Plaintiffs urge that such construction is in accordance with the underlying policy of the Wisconsin uninsured motorist statute, sec. 204.30(5), Stats. (1965), and that where any ambiguity exists, the phrase should be construed in the light most favorable to the insured and in a manner consonant with the purpose of the underlying statute. The plaintiffs also take the position that the only justification for the 'physical contact' requirement is the prevention of fraudulent claims and that, since there is not a scintilla of fraud in this case, the requirement of 'physical contact' is inapplicable. Appellants, in addition, rely on various commentators and scholars who conclude that the requirement of 'physical contact' and a literal interpretation of that term lead to results which are inequitable and contrary to public policy. Typical of these statements is the following:

'An alert, athletic pedestrian who barely manages to avoid contact with such a car by leaping through a plate glass display window receives the unkindest cuts of all for his efforts, but cannot qualify. Snubbed, too, is the driver who miraculously manages to steer his car off the highway and thus avoid a collision with an oncoming vehicle traveling in the wrong lane, but in so doing effects a rather abrupt stop against an unyielding bridge abutment. Seemingly, then, this requirement once again illustrates vividly the bitter truth of that time-worn pronouncement that 'close ones only count in horseshoes. '' Notman, Uninsured Motorist Coverage: A Current Analysis, 55 Ill.Bar Journal 142, 147 (October 1966).

For the interpretation of the phrase, 'physical contact,' initial resort must obviously be to the contract of insurance. In its pertinent part the contract of insurance provides that the insurer shall:

'* * * 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 automobile because of bodily injury sustained by the insured, caused by accident and arising out of the ownership, maintenance or use of such uninsured automobile. * * *'

The policy defines an uninsured automobile as:

'(a) an automobile with respect to the ownership, maintenance or use of which there is no bodily injury liability bond or insurance policy applicable at the time of the accident with respect to any person or organization legally responsible for the use of such automobile, or

'(b) a hit-and-run automobile.'

A 'hit and run automobile' is further defined as:

'* * * 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 at the time of the accident. * * *'

The policy outlines other preliminary steps that a claimant must take to invoke coverage under this portion of the policy, but they are not at issue in this litigation.

The Wisconsin statute which requires the issuance of policies that provide uninsured motorist coverage is sec. 204.30(5) (1965). It provides:

'204.30 Accident insurance, highway traffic, policy provisions.

'* * *

'(5) Uninsured motorist coverage. (a) No automobile liability or motor vehicle liability policy of insurance insuring against loss resulting from liability imposed by law for bodily injury or death suffered by any person 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 therein or supplemental thereto in limits for bodily injury or death in the amount of at least $10,000 per person and $20,000 per accident under provisions approved by the commissioner of insurance, for the protection of persons insured thereunder who are legally entitled to recover damages from owners or operators of uninsured motor vehicles because of bodily injury, sickness or disease, including death resulting therefrom. The named insured has the right to reject such coverage. Unless the named insured requests such coverage in writing, such coverage need not be provided in or supplemental to a renewal policy where the named insured has rejected the coverage in connection with a policy previously issued to him by the same insurer.'

We are satisfied that the phrase in the policy, 'physical contact,' is intended to express no other meaning than that which is plainly apparent on its face. Despite the forceful arguments of the appellants, we conclude that there is no reasonable construction to this phrase that supports other than the requirement that there be an actual striking between the 'hit and run automobile' and the insured's vehicle, at least in a situation where only two vehicles are involved. The very term, 'hit and run,' contained in the policy itself supports the plain meaning that we attribute to the term, 'physical contact.' The word, 'hit,' is defined in Webster's Third New International Dictionary as:

'1a: a blow striking...