Hill v. Citizens Ins. Co. of America, Docket No. 91743

• Court: Court of Appeal of Michigan (US)
• Writing for the Court: ALLEN
• Citation: 403 N.W.2d 147,157 Mich.App. 383
• Decision Date: 16 April 1987
• Docket Number: Docket No. 91743
• Parties: Marta HILL, Plaintiff-Appellant, v. CITIZENS INSURANCE COMPANY OF AMERICA, a Michigan Corporation, Defendant- Appellee.

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403 N.W.2d 147 157 Mich.App. 383 Marta HILL, Plaintiff-Appellant,
v.
CITIZENS INSURANCE COMPANY OF AMERICA, a Michigan
Corporation, Defendant- Appellee. Docket No. 91743. Court of Appeals of Michigan. Submitted Sept. 30, 1986.
Decided Jan. 21, 1987.
Released for Publication April 16, 1987.

[157 Mich.App. 384] 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.

ALLEN, Presiding Judge.

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 that date, time and place the testimony of Plaintiff would be that a large rock which was airborne, went through the windshield of Plaintiff's decedent's vehicle, causing his death. The rock came through the windshield just as a camper passed Plaintiff's vehicle traveling in the [157 Mich.App. 385] opposite direction. The testimony of Plaintiff would be that the camper propelled the rock. Defendant has no evidence of what caused the rock to become airborne."

On August 2, 1985, plaintiff filed a two-count complaint in the circuit court for

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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:

"3. 'Hit-and-run Automobile' means an automobile which causes bodily injury to an Assured arising out of physical contact of such automobile with the Assured or with an automobile which the Assured is occupying at the time of the accident...."

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:

"... I believe that case [Auto Club Ins, supra ] to be controlling. It, to the best of my knowledge, is the last word on this narrow issue, and holds that a contract requirement that there be physical contact with an uninsured vehicle in order to recover under the uninsured motorist provisions of an automobile insurance policy is valid and enforceable. They go into great lengths to examine the old Bromley [v Citizens Ins Co of America, 113 Mich [157 Mich.App. 386] App 131; 317 NW2d 318 (1982) ], case and your cases of Lord [v Auto-Owners Ins Co, 22 Mich App 669; 177 NW2d 653 (1970) ] and Citizens [Mutual Ins Co v Jenks, 37 Mich App 378; 194 NW2d 728 (1971) ], and they ultimately rule that the arbiters in that particular case had committed an error of law.

"They very pointedly set out that these provisions are not contrary to the public policy of this state, that the Legislature intended to change long-standing public policy, and that this is in fact contractual language to be construed.

"With the repeal of the Michigan motor vehicle claims act, the court then becomes persuaded that the language that is set forth in that New York opinion referred to by Mr. Renner applies equally to the State of Michigan, and I refer to that case [Smith v Great American Ins Co, 29 NY2d 116; 324 NYS2d 15; 272 NE2d 528 (1971) ].

"If asked to rule as a part of this ruling whether or not a rock thrown up by a vehicle passing on a country highway would be contact--physical contact, I would rule that it is not. I believe in the state of the law in the State of Michigan since no fault and the repealer of the Michigan motor vehicle act is that the court must look to the contract itself.

"This particular contract which is attached to defendant's brief defines hit and run automobile does require actual physical contact, and would lead the court to the conclusion that the motion requested by plaintiff be denied; the motion requested by defendant be granted and summary disposition will be ordered."

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 [157 Mich.App. 387] 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.

"It is clear that ever since the time of Sir Isaac Newton man has recognized and lived by certain physical laws of impact and motion. Accordingly, we hold, as did the Federal Court of Appeals for the Fifth Circuit (applying Florida law) in the case of State Farm Mutual Automobile Ins Co v Spinola, 374 F2d 873 (CA 5, 1967), that an insured party is covered where the impact of the hit-and-run car was transmitted to his car through an intermediate car. We find,

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as did Sir Isaac, that this acceptance of a fundamental property of natural phenomena is the more sensible and consistent view as regards transfer of impact through intermediate objects."

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[157 Mich.App. 388] 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...