Hill v. Citizens Ins. Co. of America
Decision Date | 16 April 1987 |
Docket Number | Docket No. 91743 |
Citation | 403 N.W.2d 147,157 Mich.App. 383 |
Parties | Marta HILL, Plaintiff-Appellant, v. CITIZENS INSURANCE COMPANY OF AMERICA, a Michigan Corporation, Defendant- Appellee. |
Court | Court of Appeal of Michigan — District of US |
Green, Renner, Weisse, Rettig, Rademacher & Clark, P.C. by George C. Renner, Escanaba, for plaintiff-appellant.
Davis, Olsen, Filoramo & Plackowski, P.C. by Gary L. Olsen, Escanaba, for defendant-appellee.
Before ALLEN, P.J., and CYNAR and LIVO, * JJ.
In this case of first impression in Michigan, we are asked to decide if a "physical contact" requirement in an uninsured motorist provision of a policy of insurance precludes the policyholder from recovery when an unidentified vehicle propels a rock through the windshield of the policyholder's automobile, the impact killing the policyholder. The trial court ruled that Auto Club Ins. Ass'n v. Methner, 127 Mich.App. 683, 339 N.W.2d 234 (1983), was controlling and granted summary disposition for defendant. Plaintiff appeals as of right.
On June 30, 1985, plaintiff's husband was driving his car in a westerly direction on M-138 in Delta County. In the front seat next to him was his wife, Marta Hill. A camper-truck approached in the eastbound lane. Exactly what then happened is stipulated by the parties as follows:
On August 2, 1985, plaintiff filed a two-count complaint in the circuit court for Delta County. Count I sought recovery of no-fault survivor benefits and Count II asked the policy limits of the uninsured motorist provisions of the policy. Settlement was made on count I.
On count II both parties filed cross-motions for summary disposition to determine the legal effect of the "physical contact" requirement of the uninsured motorist provision in the policy. The provision reads:
A stipulation of facts, set forth above, was prepared by the parties and submitted to the court together with briefs on the question raised. Following a March 21, 1986 hearing on the motions, the trial court granted the defendant's motion stating from the bench:
On appeal plaintiff argues that the trial court erred in holding that direct physical contact with the hit-and-run vehicle itself is required in order to qualify plaintiff for benefits under the "physical contact" provision in the policy. In support of this argument, plaintiff cites three cases. In Lord v. Auto-Owners Ins. Co., 22 Mich.App. 669, 177 N.W.2d 653 (1970), plaintiff was allowed recovery where hit-and-run car A struck an intermediate car B which in turn struck plaintiff's car C. Our Court said at 672, 177 N.W.2d 653.
In the second case, Kersten v. DAIIE, 82 Mich.App. 459, 267 N.W.2d 425 (1978), plaintiff was injured when the vehicle she was driving struck an unidentified tire and rim assembly spinning in front of her on the passing lane of the highway. Plaintiff sought recovery under the Motor Vehicle Accident Claims Act (MVACA), M.C.L. § 257.1101 et seq., M.S.A. § 9.2801 et seq., § 12 of which provided that "physical contact by the unidentified vehicle with the plaintiff or with a vehicle occupied by the plaintiff, is a condition precedent to such action." The trial court allowed recovery. On appeal defendant insurer contended, as does defendant in the instant case, that direct physical contact with the unidentified vehicle itself was required and that contact by a propelled object, such as a tire, was insufficient. This jurist, writing of the opinion of the Court, disagreed saying:
"The physical contact requirement has been further stretched to permit recovery where an object is propelled into the insured vehicle by another vehicle which does not stop. The primary example of such a situation is the case of a stone thrown off by the tires of a passing vehicle. Barfield v Ins Co of North America, 59 Tenn App 631; 443 SW2d 482 (1968), and Gavin v Motor Vehicle Accident Indemnification Corp, 57 Misc 2d 335; 292 NYS2d 745 (1968), and Anno: 25 ALR3d 1299, supra. In Allied Fidelity Insurance Co v Lamb, 361 NE2d 174 (Ind App, 1977), the court upheld recovery where a truck propelled a rock through the windshield of the insured vehicle because 'a substantial physical nexus between the unidentified vehicle and the intermediate object is established.'
* * *
* * *
82 Mich.App. 470, 471, 267 N.W.2d 425.
Nevertheless, because the Court found the testimony insufficient to show a continuous and contemporaneously transmitted force between the phantom truck and the tire and rim assembly on the highway, recovery was denied. 1
The third case is Adams v. Zajac, 110 Mich.App. 522, 313 N.W.2d 347 (1981). Plaintiff's wife brought suit against the Secretary of State pursuant to the hit-and-run provision of the Motor Vehicle Accident Claims Act for the death of her husband who was killed when a truck he was operating went out of control and plunged into a creek after striking or swerving to avoid striking a tire and rim assembly lying on Interstate 75. The trial court granted the Secretary of State's motion to dismiss on grounds that there was no "physical contact" between the Adams vehicle and the unidentified vehicle. On appeal, this Court first held that physical contact did not require direct contact:
110 Mich.App. 526-527, 313 N.W.2d 347.
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