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

• Citation: 197 Neb. 118,246 N.W.2d 874
• Decision Date: 24 November 1976
• Docket Number: No. 40575,40575
• Parties: Deborah L. GRACE, Appellant, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Appellee.
• Court: Nebraska Supreme Court

Page 874

246 N.W.2d 874

197 Neb. 118

Deborah L. GRACE, Appellant, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Appellee.

No. 40575.

Supreme Court of Nebraska.

Nov. 24, 1976.

Syllabus by the Court

A requirement in an automobile insurance policy that there be physical contact of a hit-and-run motor vehicle with the insured or the vehicle which the insured is occupying at the time of the accident, as a condition precedent to the assertion of a claim under the hit-and-run clause of an uninsured motorist provision, is valid and reasonable. It is not an impermissible limitation or restriction on the insurance coverage required by section 60--509.01, R.R.S.1943, nor is it in conflict with the beneficial public policy of that statute.

David J. Cullan, of Cullan & Cullan, Omaha, for appellant.

Joseph K. Meusey, of Fraser, Stryker, Veach, Vaughn & Meusey, P.C., Omaha, for appellee.

Heard before WHITE, C.J., and SPENCER, BOSLAUGH, McCOWN, NEWTON, CLINTON, and BRODKEY, JJ.

McCOWN, Justice.

Plaintiff brought this action against the insurer under the uninsured motorist provisions of an automobile insurance policy. She seeks recovery for personal injuries sustained in a one-car accident caused by the negligence of the driver of an unidentified automobile which did not strike the car in which plaintiff was riding but left the scene of the accident. The sole issue is whether the insurance policy definition of 'hit-and-run vehicle,' which requires physical contact between the unidentified automobile and the automobile which the plaintiff was occupying, is in violation of statutory requirements for uninsured motorist coverage. The District Court found that the policy provisions requiring physical contact were valid and dismissed plaintiff's causes of action.

The facts were stipulated and the case was tried to the court without a jury. On April 26, 1969, plaintiff was a passenger in an automobile being driven in an easterly direction on Interstate 80 in Omaha, Nebraska. As the automobile approached the Kennedy Freeway exit, a vehicle also traveling in an easterly direction turned to the right to enter the exit to the Kennedy Freeway and then suddenly and without warning turned sharply to the left to return to the east-bound lane of travel on Interstate 80 immediately in front of the car in which plaintiff was riding. The driver of plaintiff's car slammed on the brakes, which caused a skid, and the car then collided with a metal light pole on the side of Interstate 80 injuring the plaintiff. The other vehicle did not make physical contact with any vehicle or object but left the scene of the accident, and neither the vehicle nor the driver of the vehicle have ever been identified. Plaintiff received serious personal injuries resulting in extensive hospital confinement and disability. It is stipulated that those injuries were the direct and proximate result of the negligence of the driver of the unidentified vehicle and the resultant collision with the light pole.

Both plaintiff and the driver of the car in which she was riding had automobile insurance policies with the defendant which included uninsured motorist coverage. Plaintiff's causes of action were filed separately on each policy, but the actions were consolidated by agreement. It is stipulated that the plaintiff qualifies as an insured within the meaning of the provisions of each policy, and that plaintiff complied with all the conditions required by the policy in the definition of a hit-and-run motor vehicle except that there was no physical contact of the unidentified vehicle and the vehicle which the plaintiff occupied at the time of the accident.

The District Court specifically found that plaintiff's damages proximately resulting from the accident exceeded the sum of $20,000, and that the policy coverage of the two insurance policies could be 'stacked.' However, the court determined that the policy definition of a hit-and-run vehicle requiring physical contact of such vehicle with the vehicle which the insured was occupying at the time of the accident was a valid provision and was not in violation of the requirements of section 60--509.01, R.R.S.1943. The District Court therefore dismissed plaintiff's petitions.

Section 60--509.01, R.R.S.1943, in part provides: '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 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 set forth in section 60--509, under provisions approved by the Director of Insurance, 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; Provided, * * *.'

The insurance policies involved here provided that an uninsured motor vehicle includes a hit-and-run motor vehicle as defined in the policy. That definition is: 'Hit-and-Run Motor Vehicle--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 a vehicle which the insured is occupying at the time of the accident, * * *.' The policy also requires that the identity of neither the operator or owner of the hit-and-run motor vehicle can be ascertained, in addition to other requirements which are immaterial here in view of the stipulation.

The validity of physical contact requirements in connection with uninsured motorist coverage in automobile insurance policies has been considered by many courts in many different situations. However, it is a case of first impression in this state. Uninsured motorist statutes may be roughly classified in three different categories: (1) Those which use only the term 'uninsured motorist' and do not specifically mention hit-and-run vehicles or a physical contact requirement; (2) those which may or may not include the term 'hit-and-run' but have a specific requirement of physical contact; and (3) those which include the term 'hit-and-run', but do not have a specific physical contact requirement in the statute. The Nebraska statute falls in the latter category. In many states uninsured motorist coverage is not compulsory. In general, Nebraska requires such coverage to be included in any motor vehicle liability insurance policy unless rejected by the insured. No matter which of the various statutory categories may be considered, courts have apparently reached opposite conclusions on the physical contact issue in every category. See Annotation, 'Uninsured Motorist Endorsement: Validity and Construction of Requirement that there be 'Physical Contact' with Unidentified or Hit-And-Run Vehicle,' 25 A.L.R.3d 1299.

The judicial appraisal of the critical issue of physical contact, in essence, rests upon a determination of legislative policy and intent, particularly where uninsured motorist coverage is required by statute....