Berry v. State Farm Mutual Automobile Insurance Company

• Decision Date: 11 October 1996
• Docket Number: Docket No. 184236
• Citation: 556 N.W.2d 207,219 Mich.App. 340
• Parties: Tella Katherine BERRY, Plaintiff-Appellee, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

Page 207

556 N.W.2d 207

219 Mich.App. 340

Tella Katherine BERRY, Plaintiff-Appellee, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant-Appellant.

Docket No. 184236.

Court of Appeals of Michigan.

Submitted July 9, 1996, at Grand Rapids.

Decided Oct. 11, 1996, at 9:00 a.m.

Released for Publication Dec. 9, 1996.

Jay F. Trucks, Clare, for plaintiff.

Bensinger, Cotant, Menkes & Aardema, P.C., Gaylord (by Michael E. Menkes), for the defendant.

Before DOCTOROFF, C.J., and WAHLS and SMOLENSKI, JJ.

PER CURIAM.

Defendant, State Farm Mutual Automobile Insurance Company, appeals as of right an order, following a bench trial, providing that the claim of plaintiff, Tella Katherine Berry, for uninsured motorist benefits under a no-fault policy of insurance issued to her by defendant be arbitrated in accordance with the terms and conditions of the policy. We affirm.

The insurance policy provides in relevant part as follows:

We will pay damages for bodily injury an insured is legally entitled to collect from the owner or driver of an uninsured motor vehicle. The bodily injury must be caused by accident arising out of the operation, maintenance or use of an uninsured motor vehicle.

The policy defines "uninsured motor vehicle," in relevant part, as

a "hit-and-run" land motor vehicle whose owner or driver remains unknown and which strikes:

a. the insured or

b. the vehicle the insured is occupying

and causes bodily injury to the insured.

The policy further provides for arbitration should a dispute arise between the parties concerning whether the insured is legally entitled to collect damages from the owner or driver of an uninsured vehicle.

The trial testimony of plaintiff and William Courter may be summarized as follows. In August 1992, plaintiff was driving south on Luce Road when she approached the crest of a hill. She had not seen any traffic in front of her in the southbound lane. As a pickup truck approached her from the opposite direction, she saw an "object" in the southbound lane. Because she could not get over into the northbound lane, she attempted to drive over the object. The object struck and damaged the underside of her car, causing her to lose control. The car came to rest in a field.

Earlier in the day of plaintiff's accident, Courter had been baling hay in a field along Luce Road. Beginning at approximately 1:00 p.m., Courter had loaded his wagon with hay in a field south of the eventual accident site, had hauled the wagon north on Luce Road to a storage building near the accident site, had unloaded the wagon, had traveled south on Luce Road back to the field, and had picked up another load. Courter had continued to make this trip every ten to fifteen minutes.

At approximately 3:30 or 4:00 p.m., and before plaintiff's accident, while again leaving the field to travel north on Luce Road during one of his trips, Courter observed a southbound pickup truck, which was hauling a two-wheeled trailer with a load of scrap iron or steel, stopped on Luce Road approximately one-half mile south of the subsequent accident site. The trailer had "roughly two foot or three foot sides," but was not covered with a tarpaulin. Courter observed a man back by the trailer "looking his load over." Courter did not observe the man tightening any straps or picking up anything.

While traveling north on Luce Road during this same trip, Courter observed in the southbound lane at the site of the subsequent accident "a piece of metal, oh, I'd say approximately sixteen or eighteen inches long, and it looked like it had a sprocket on the end of it." This metal piece had not been on the road during Courter's previous trip. Courter, without stopping and picking up the metal piece, turned into the storage area and unloaded the wagon. By the time Courter began his trip back to the field, plaintiff's accident had occurred. Courter estimated that the accident occurred approximately fifteen minutes after he observed the stopped pickup truck, although "it could've been five minutes one way or the other." Courter saw no other activity that could have accounted for the metal piece being in the road. However, Courter acknowledged that other vehicles could have gone by while he was in the barn.

Following plaintiff's accident and defendant's refusal to arbitrate plaintiff's uninsured motorist claim, plaintiff filed suit. Following the bench trial, the court ruled in relevant part as follows:

Therefore, the court concludes or finds that the scrap metal did come from the vehicle pulled over at the side of the road; and that as short as five minutes, as long as fifteen minutes after Mr. Courter observed the scrap metal in the road and the pickup truck pulling the trailer with the scrap metal on it that the accident occurred. I find then that there is coverage under the uninsured motorist provisions of the insurance policy. It was in the use of the unidentified vehicle that the scrap metal was deposited on the roadway; that the vehicle is an unknown vehicle which struck the insured. I guess the real question here is does a piece of metal coming from an unknown vehicle strike another vehicle after it comes to rest, or does there need to be continuous force. In other words, does the object have to come off of the unknown truck in the case and hit the vehicle without stopping and laying in the roadway for five to fifteen minutes? The court concludes that the cases cited by counsel in their briefs do support the finding and holding of the court today. Therefore, I am ordering this matter to arbitration.

On appeal, defendant argues that the court erred in finding that the piece of metal in the southbound lane of Luce Road was dropped from the truck and trailer observed by Courter. Specifically, defendant contends that there are any number of explanations concerning the origin of the metal piece, particularly where neither plaintiff nor Courter actually saw any metal fall from the truck and trailer.

Pursuant to MCR 2.613(C):

Findings of fact by the trial court may not be set aside unless clearly erroneous. In the application of this principle, regard shall be given to the special opportunity of the trial court to judge the credibility of the witnesses who appeared before it.

A finding is clearly erroneous when, although there is evidence to support the finding, this Court is left with a definite and firm conviction that a mistake has been made. Triple E Produce Corp. v. Mastronardi Produce, Ltd., 209 Mich.App. 165, 171, 530 N.W.2d 772 (1995). Circumstantial evidence and the reasonable inferences therefrom can constitute satisfactory proof. See, e.g., People v. Greenwood, 209 Mich.App. 470, 472, 531 N.W.2d 771 (1995). However, inferences may be drawn only from established facts, not from other inferences. See, e.g., People v. McWilson, 104 Mich.App. 550, 555, 305 N.W.2d 536 (1981).

In this case, the trial court observed and accepted the testimony of plaintiff and Courter. When observed by Courter, the truck and trailer was stopped and facing in a southbound direction approximately one-half mile south of the subsequent accident site. The truck's trailer contained an uncovered load of scrap metal that was being inspected by a man. A piece of metal was observed by Courter shortly thereafter in the southbound lane at the site of the subsequent accident. These established facts give rise to the logical inference that the piece of metal in the southbound lane of Luce Road came from the southbound truck pulling a trailer filled with scrap metal. We are not left with a definite and firm conviction that the trial court made a mistake in so finding.

Next, defendant takes issue with the court's legal conclusion that plaintiff was covered under the uninsured motorist provision of the insurance policy. Defendant acknowledges, and we agree, that the policy's requirement that a hit-and-run vehicle must strike the insured's vehicle constitutes a requirement of physical contact between the hit-and-run vehicle and the insured's vehicle. Defendant's arguments all concern whether physical contact between a hit-and-run vehicle and plaintiff's vehicle occurred in this case.

Uninsured motorist coverage is not required by statute. Citizens Ins. Co. of America v. Buck, 216 Mich.App. 217, 224, 548 N.W.2d 680 (1996). However, such coverage may be purchased to provide an insured with a source of recovery if the tortfeasor is uninsured. Id. Because uninsured motorist benefits are not required by statute, the contract of insurance determines under what circumstances such benefits will be awarded. Rohlman v. Hawkeye-Security Ins. Co., 442 Mich. 520, 525, 502 N.W.2d 310 (1993). The policy definitions control. Id. Thus, this Court's duty is to determine from the language of the policy the parties' apparent intention. Doubtful or ambiguous terms must be construed in favor of the insured and against the insurer, the drafter of the policy. Rohlman v. Hawkeye-Security Ins. Co. (On Remand), 207 Mich.App. 344, 350, 526 N.W.2d 183 (1994).

The requirement in an uninsured motorist policy of "physical contact" between a hit-and-run vehicle and the insured or the insured's vehicle is enforceable in Michigan. Kreager v. State Farm Mutual Automobile Ins. Co., 197 Mich.App. 577, 582, 496 N.W.2d 346 (1992). The physical contact requirement is designed to reduce the possibility of fraudulent phantom vehicle claims. Hill v. Citizens Ins. Co. of America, 157 Mich.App. 383, 394, 403 N.W.2d 147 (1987). Thus, there must be some sort of actual physical contact between the hit-and-run vehicle and the insured or the insured's vehicle. See, e.g., Said v. Auto Club Ins. Ass'n, 152 Mich.App. 240, 393 N.W.2d 598 (1986) (swerving to avoid a hit-and-run vehicle does not satisfy the physical contact requirement); see also Auto Club Ins. Ass'n v. Methner, 127 Mich.App. 683, 339 N.W.2d 234 (1983). However, this Court has construed the physical contact requirement broadly to include...