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

• Decision Date: 05 July 1977
• Docket Number: No. 49347,49347
• Citation: 1977 OK 135,569 P.2d 430
• Parties: Dorothy Jean BIGGS, Appellee, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, a corporation, Appellant.
• Court: Oklahoma Supreme Court

Page 430

569 P.2d 430

Dorothy Jean BIGGS, Appellee, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, a corporation, Appellant.

No. 49347.

Supreme Court of Oklahoma.

July 5, 1977.

Rehearing Denied Sept. 26, 1977.

Appeal from the District Court of Tulsa County; Ronald Rickets, Judge.

Action on a contract of insurance between Appellee and Appellant under the uninsured motorist provisions of said contract which required physical contact between the insured vehicle and the hit-and-run driver before coverage was applicable. The jury found no physical contact and returned a verdict for the Appellee. Appellant insurance company brings this appeal. AFFIRMED.

Jones, Givens, Brett, Gotcher, Doyle & Bogan, Inc., by Allen B. Pease, Tulsa, for appellee.

Best, Sharp, Thomas & Glass by Joseph A. Sharp and Michael P. Atkinson, Tulsa, for appellant.

BARNES, Justice:

This is an appeal by Appellant, State Farm Mutual Automobile Insurance Company, from a verdict lodged in the District Court for the Appellee, Dorothy Jean Biggs. The parties are in agreement as to the facts and the evidence presented.

The action was brought by Appellee on a policy of insurance issued by Appellant, seeking recovery of damages for injuries allegedly sustained when an unidentified motorist caused Appellee's vehicle to swerve off the highway into a ditch embankment, causing her to suffer bodily injury. The Trial Court entered judgment for the Appellee on a jury verdict. Appellant's Motion for New Trial and Motion for Judgment Notwithstanding the Verdict were overruled. From those rulings, Appellant brings this appeal.

On September 20, 1974, Appellee was en route from Pryor, Oklahoma, to Muskogee, Oklahoma, by way of U.S. Highway 69, when she was involved in a vehicular accident allegedly caused by an unidentified motorist. Appellee asserted she was forced off the road by the unidentified motorist operating a blue pickup truck, while she was in the process of attempting to pass the pickup and another vehicle driven by the witness, Robert W. Brewer. It is to be noted that Appellee was the only witness to the accident as Brewer did not see the Appellee's vehicle until it was out of control and never saw what occurred prior to the accident. Witness Brewer did not see the pickup attempt to pull out. Nor did he hear or see any contact between the pickup and the Appellee's vehicle. Both Appellee's petition and testimony alleged physical contact of the unidentified automobile with her car.

Appellee's husband, Harold Biggs, testified as to entering into a contract of insurance with Appellant covering the vehicle his wife was operating at the time of the accident. Said policy was entered into evidence pursuant to stipulation of the parties and provided uninsured motorist coverage.

On January 9, 1976, the jury returned the following interrogatory:

"We, the jury impaneled and sworn in the

above entitled cause, do upon our oaths,

find by a preponderance of the evidence, that

there was physical contact between plaintiff's

automobile and John Doe's pickup: Yes ---

No X

---

(Signed) Foreman, Clinton Neeley"

This is a case of first impression in Oklahoma.

Appellant first argues error by the Trial Court in overruling its Motion for New Trial and Motion for Judgment Notwithstanding the Verdict, asserting that the jury's answer to the Court's special interrogatory specifically precludes recovery under the contract of insurance sued upon.

The contract of insurance involved contained the following provisions as to damages for bodily injury caused by all uninsured motor vehicles:

"To pay all sums which the insured . . . shall be legally entitled to recover as damages from the owner or operator of an uninsured motor vehicle because of bodily injury sustained by the insured, caused by accident and arising out of the ownership, maintenance or use of such insured motor vehicle. . . . "

The insurance contract defined a hit-and-run vehicle as follows:

"A land motor vehicle which causes bodily injury to an insured arising out of physical contact of such vehicle with the insured . . . at the time of the accident. . . . " (Emphasis ours)

Appellant urges the insuring agreements relied upon thus bar recovery for the reason that the jury specifically found that no physical contact between the Appellee's vehicle and the hit-and-run motor vehicle occurred. The Appellant contends the Trial Court's judgment is contrary to the jury's finding on the issue of physical contact.

Secondly, Appellant asserts the physical contact requirement, contained in the insurance contract and precluding recovery, is logical and consistent with public policy and does not operate to limit the legislative intent expressed in 36 O.S.1971, § 3636. That statute provides, in pertinent part, that:

"(A) No policy 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 issued, delivered, renewed, or extended in this state with respect to a motor vehicle registered or principally garaged in this state unless the policy includes the coverage described in subsection (B) of this section.

"(B) The policy referred to in subsection (A) of this section shall provide coverage therein or supplemental thereto for the protection of persons insured thereunder who are legally entitled to recover damages from owners or operators of uninsured motor vehicles and hit-and-run motor vehicles because of bodily injury, sickness or disease, including death resulting therefrom. * * * " (Emphasis ours)

We must interpret the uninsured motorist statute to determine if there is uninsured motorist coverage under those facts. The uninsured motorist statutes enacted by the Legislatures of the various States can be broken down into three basic types: (1) Those where the statutes specifically state that there be physical contact to provide coverage; (2) those where the statute speaks of the uninsured motorist, but fails to mention either physical contact or hit-and-run drivers; and (3) those where the statute speaks only of uninsured motorists and hit-and-run drivers without mention of physical contact. Oklahoma's statute falls within the third category.

Two divergent lines of authority appear to exist as to the third category on the issue of whether or not the policy provision of "actual physical contact" must be met before recovery can be had under an uninsured motorist damages claim.

Appellant herein relies heavily on Traveler's Indemnity Co. v. Reddick, 37 Ohio St.2d 119, 308 N.E.2d 454 (1974), and Prosk v. Allstate Insurance Co., 82 Ill.App.2d 457, 226 N.E.2d 498 (1967). We find more persuasive the reasoning of Hartford Accident and Indemnity Company v. Novak, 86 Wash.2d 576, 520 P.2d 1368 (1974). There the defendants were involved in an automobile accident with a second vehicle, which struck the defendants' vehicle as the second vehicle swerved to avoid colliding with another third vehicle, which had unexpectedly pulled out into the lane of traffic. At the time of the accident the third vehicle failed to make any "physical contact" with either the second vehicle or the defendants' vehicle, but rather fled the scene without leaving any means of identification available to anyone involved. That insurance policy, as does the insurance policy in question, defined "hit-and-run" automobile as requiring physical contact with the...