Farmers Ins. Exchange v. McDermott, 73--431
Decision Date | 20 August 1974 |
Docket Number | No. 73--431,73--431 |
Parties | FARMERS INSURANCE EXCHANGE, an inter-insurance exchange, Plaintiff-Appellee, v. Paul F. McDERMOTT, Defendant-Appellant. . II |
Court | Colorado Court of Appeals |
Dosh, DeMoulin, Anderson & Campbell, Laird Campbell, Denver, for plaintiff-appellee.
Frickey, Carins & Wylder, P.C., Earl S. Wylder, Denver, for defendant-appellant.
Plaintiff insurance company brought this action seeking a declaratory judgment to determine whether defendant's loss from a 'hit-and-run' accident falls within the coverage of an insurance policy issued by plaintiff. The case, involving a personal injury, was submitted to the trial court upon stipulated facts and a declaratory judgment was entered in favor of the insurance company. We reverse.
The parties stipulated that the defendant and an independent eyewitness would, if called as witnesses, testify that the accident in which defendant was involved resulted when an unidentified automobile pulled into defendant's lane of traffic and caused him to swerve. Defendant's car then struck a guard rail and bounced into another lane of traffic, striking a third vehicle. It was also stipulated that the witnesses would testify that there was no physical contact between defendant's vehicle and the vehicle of the unidentified driver, and that plaintiff would not call witnesses to controvert such testimony from defendant and the eyewitness.
The only issue presented is whether defendant is entitled to coverage under the policy of insurance issued by plaintiff to defendant. That policy contained a standard 'uninsured motorist' provision. The definition of an uninsured motor vehicle under this provision includes a 'hit-and-run' vehicle which is further defined as follows:
'Hit-and-Run Motor Vehicle means a motor vehicle which causes bodily injury Arising out of physical contact of such motor vehicle with the insured or with an automobile which the insured is occupying at the time of the accident, provided (a) there cannot be ascertained the identity of either the operator or the owner of such 'hit-and-run motor vehicle' . . ..' (emphasis added)
Defendant argues that this provision of the policy, insofar as it requires a physical contact between the insured vehicle and the 'hit-and-run' vehicle, is invalid as an impermissible restriction upon the coverage which is required by the Colorado uninsured motorist statute, 1965 Perm.Supp., C.R.S. 1963, 72--12--19. We agree. The statute provides as follows:
'No automobile liability or motor vehicle liability policy . . . shall be delivered or issued for delivery in this state . . . unless coverage is provided . . . for bodily injury or death . . . 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 following section, 1965 Perm.Supp., C.R.S. 1963, 72--12--20, is a declaration of public policy by the legislature stating the following:
'(I)t is the policy of this state to induce and encourage all motorists to provide for their financial responsibility for the protection of others, And to assure the widespread availability to the insuring public of insurance protection against financial loss caused by negligent financially irresponsible motorists.' (emphasis added)
This declaration of policy is made with specific reference to the preceding section. See also Morgan v. Farmers Insurance Exchange, Colo., 511 P.2d 902.
Two divergent lines of authority appear to exist on the issue before us. One view is that the physical contact restriction is not in conflict with the uninsured motorist statute. See, e.G., Prosk v. Allstate Insurance Co., 82 Ill.App.2d 457, 226 N.E.2d 498, 25 A.L.R.3d 1294. However, other courts have held under statutes very similar to ours, that the...
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