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

• Decision Date: 15 April 1971
• Docket Number: No. 670A96,No. 1,670A96,1
• Citation: 148 Ind.App. 586,268 N.E.2d 316
• Parties: Steven Troy ELY, b/n/f Hobert H. Ely, Plaintiff-Appellant, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE CO., Defendant-Appellee. Hobert H. ELY, Plaintiff-Appellant, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE CO., Defendant-Appellee
• Court: Indiana Appellate Court

Page 316

268 N.E.2d 316

148 Ind.App. 586

Steven Troy ELY, b/n/f Hobert H. Ely, Plaintiff-Appellant, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE CO., Defendant-Appellee.

Hobert H. ELY, Plaintiff-Appellant, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE CO., Defendant-Appellee.

No. 670A96.

Appellate Court of Indiana, Division No. 1.

April 15, 1971.

Rehearing Denied April 30, 1971.

Daniel J. Harrigan, Bayliff, Harrigan, Cord & Maugans, Kokomo, for plaintiff-appellant.

Eugene J. McGarvey, Jr., Fell & McGarvey, Kokomo, for defendant-appellee.

SULLIVAN, Presiding Justice.

In companion cases against the defendant-insurer the complaints of the insured and his son, which alleged failure of the insurer to pay benefits for a hit-and-run accident under an uninsured motorist agreement, were dismissed pursuant to Trial Rule 12(B)(6). The respective rulings were based upon the fact that the complaints contained allegations that there was no physical contact with the uninsured vehicle as required by the policy.

According to the second amended complaints of both Steven Ely and his father, Hobert Ely, Steven was riding as a guest passenger in a car owned by Rae Schleminer and operated by Richard Wagner. As the car travelled west on County Road No. OONS near Kokomo, Indiana, it approached a railroad trestle and began a gradual descent through a road-cut toward the low point of the cut directly beneath the trestle. At a point approximately 350 feet east of the trestle the host driver noticed a truck stopped in the middle of the road a few yards west of the trestle and he applied his brakes. The car skidded on the wet and mud-covered pavement into a wall of heavy embankment restraining timbers on the north side of the road.

As a result of the accident, Steven Ely, the minor son of Hobert Ely, suffered substantial injuries which he alleged caused undetermined permanent impairment and loss of probable appointment to the United States Air Force Academy. Steven's father claimed recovery for present and future medical expenses for his son and deprivation of his son's services, society and companionship. Both claims were filed with the defendant-appellee pursuant to the uninsured motorist provision of Hobert Ely's automobile insurance policy, the pertinent terms of which are as follows:

'COVERAGE U--DAMAGES FOR BODILY INJURY CAUSED BY UNINSURED AUTOMOBILES:

'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 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 * * *.'

'DEFINITIONS--INSURING AGREEMENT III

'Uninsured Automobile--means:

'(2) a hit-and-run automobile as defined * * *

'Hit-and-Run Automobile--means a land motor vehicle which causes bodily injury to an insured arising out of physical contact of such vehicle with the insured or with an automobile which the insured is occupying at the time of the accident, provided: (1) there cannot be ascertained the identity of either the operator or owner of such 'hit-and-run automobile'; (2) the insured or someone on his behalf shall have reported the accident within 24 hours to a police or judicial officer or to the commissioner of Motor Vehicles, and shall have filed with the company within 30 days thereafter a statement under oath that the insured or his legal representative has a cause or causes of action arising out of such accident for damages against a person or persons whose identity is unascertainable, and setting forth the facts in support thereof; and (3) at the company's request, the insured or his legal representative makes available for inspection the automobile which the insured was occupying at the time of the accident.' (Emphasis supplied)

When the defendant-appellee refused to honor the claims both Steven and Hobert Ely initiated the suits against the insurer hereinbefore mentioned in the amounts of $50,000.00 and $15,000.00 respectively. Both suits were dismissed for failure to state a claim upon which relief could be granted. After subsequent unfavorable rulings on appellants' motions to correct errors, this consolidated appeal was perfected.

The appellants' sole assignment of error on appeal is that the decisions of the trial court on the dual motions to dismiss were contrary to law. Appellants' supporting argument attempts to answer three self-posed questions:

(1) Is the 'physical contact' provision in the insurer's 'Coverage U' contrary to the legislative intent of Ind.Ann.Stat. Burns' § 39--4310, being I.C. 1971 27--7--5--1, and thus against public policy?

(2) Does 'physical contact' require actual touching of automobiles or can it be 'constructive contact?'

(3) Does proximate cause, if proven, override the 'physical contact' limitation?

It must be noted that each question is of first impression in Indiana.

PHYSICAL CONTACT REQUIREMENT NOT CONTRARY TO LEGISLATIVE

INTENT OF BURNS' § 39--4310

The appellant asserts that the physical contact requirement of the policy is contrary to the intent of Ind.Ann.Stat. Burns' § 39--4310 (I.C. 1971, 27--7--5--1), which mandates insurers to include noninsured vehicle coverage in policies delivered or issued for delivery in this state. ¹ However, no supportive authority is cited for this proposition. Without contrary knowledge we must infer that the intent of the Indiana General Assembly in enacting this statute paralleled that of the Legislatures of 45 other states ² passing similar uninsured motorist statutes--to provide the insured a modicum of protection against the negligent acts of financially irresponsible motorists. As with many of these statutes, the Indiana version requires only that coverage shall be provided under such provisions as may be approved by the state.

A danger of subversion of the clear legislative intent by virtue of deceptive contractual draftsmanship may exist and courts must, therefore, be cautious in determining the effect of exclusionary or limiting policy language. See Lawrence v. Beneficial Fire & Casualty Co. (1968), 8 Ariz. App. 155, 444 P.2d 446. Provisions, however, which appear in keeping with the obvious purpose and intent of Ind.Ann.Stat. Burns' § 39--4310 must be honored.

The policy requirement of 'physical contact' is not unreasonable and does not unduly restrict the statute. See Prosk v. Allstate Ins. Co. (1967), 82 Ill.App.2d 457, 226 N.E.2d 498. It attempts to prevent fraudulent claims by requiring of the claimant tangible proof of collision with the vehicle of an uninsured motorist. Thus, its function is to define the risk underwritten by the insurers in this state so that fulfillment of the liberal aims of the law is not incompatible with the economic realities of insurance coverage.

PHYSICAL CONTACT REQUIRES ACTUAL TOUCHING

The appellant suggests that proper interpretation of the term 'physical contact' does not require that there be an actual touching between the vehicles of the uninsured motorist and that in which the plaintiff rides, but that recovery can be had where there is 'constructive' contact. ³ In keeping with the weight of authority, however, we cannot countenance such theory.

It is clear to us that where, as here, there is no contact, direct or indirect, between the 'hit-run' vehicle and the vehicle occupied by the insured, there can be no recovery. Lawrence v. Beneficial Fire & Casualty Co., supra; Page v. Insurance Co. of North America (1967), 256 Cal.App.2d 374, 64 Cal.Rptr. 89; Prosk v. Allstate Ins. Co., supra; Roloff v. Liberty Mutual Ins. Co. (La.1966), 191 So.2d 901; Coker v. Nationwide Insurance Co. (1968), 251 S.C. 175, 161 S.E.2d 175; Smith v. Allstate Insurance Company (1970 Tenn.), 456 S.W.2d 654; Amidzich v. Charter Oak Fire Ins. Co. (1969), 44 Wis.2d 45, 170 N.W.2d 813.

Under the provisions of the controlling statute, § 39--4310, all terms and provisions as to extent and definition of coverage other than minimum monetary limits, are subject to the approval of State Commissioner of Insurance. It would be within the province and authority of such commissioner to reject policy provisions which require physical contact as a condition of recovery. He has not seen fit to do so. See, Smith v. Allstate Insurance Company, supra. It is equally within the province of the legislature to be more specific in its uninsured motorist coverage requirements. The General Assembly has not chosen to do so. See, Bellavia v. Motor Vehicle Accident Indemnification Corp. (1961), 28 Misc.2d 420, 211 N.Y.S.2d 356; Page v. Insurance Co. of North America, supra; Coker v. Nationwide Insurance Co., supra; compare Motor Vehicle Accident Indemnification Corp. v. Eisenberg (1966), 18 N.Y.2d 1, 271 N.Y.S.2d 641, 218 N.E.2d 524.

For us to extend coverage in this situation would be to rewrite the clear and unambiguous language of the insurance contract. This we are not empowered to do. McClain's Estate v. McClain (1962), 133 Ind.App. 645, 183 N.E.2d 842.

In Lawrence v. Beneficial Fire & Casualty Co., supra, the court, construing policy language practically identical to that here considered, in a very well reasoned opinion stated:

'We find nothing misleading or ambiguous about the wording used in both policies to define 'hit and run automobile' or in setting out the requirement of physical contact. It we ignore or do away with the physical contact requirement we would be rewriting the contract between these parties, and would be rendering the phrase 'hit and run' meaningless. 'Hit', in the ordinary sense, requires some 'physical contact'. If this were not the case, and if we hold that no contact is required, then we would be rewriting the policy to have it contain 'miss and run automobile' coverage, or 'evasive action' coverage. We cannot expand the language used beyond its plain and ordinary meaning, nor should we add something to the contract which the parties have...