Inter-Insurance Exchange of Auto. Club of Southern Cal.v. Lopez

• Decision Date: 29 November 1965
• Docket Number: INTER-INSURANCE
• Citation: 47 Cal.Rptr. 834,238 Cal.App.2d 441
• Parties: EXCHANGE OF the AUTOMOBILE CLUB OF SOUTHERN CALIFORNIA, Plaintiff and Respondent, v. Felicitas LOPEZ and Estella Ferrera, Defendants and Appellants. Civ. 28687.
• Court: California Court of Appeals Court of Appeals

Page 834

47 Cal.Rptr. 834

238 Cal.App.2d 441

INTER-INSURANCE EXCHANGE OF the AUTOMOBILE CLUB OF SOUTHERN CALIFORNIA, Plaintiff and Respondent, v. Felicitas LOPEZ and Estella Ferrera, Defendants and Appellants.

Civ. 28687.

District Court of Appeal, Second District, Division 2, California.

Nov. 29, 1965.

Hearing Denied Jan. 26, 1966.

Leonard H. Pomerantz and Jack Corinblit, Los Angeles, for appellants.

Gilbert, Thompson & Kelly and Jean Wunderlich, Los Angeles, for respondent.

FLEMING, Justice.

Appeal from a declaratory judgment establishing an insurer's non-liability under the uninsured motorist provisions of an automobile insurance policy.

Lopez was driving the insured automobile, and was struck by an automobile from across the center divider driven by Clements. Clements had been struck by a third vehicle, which threw his car into the path of the Lopez automobile. The third vehicle continued on its way, and its identity is unknown. For purposes of this action it was stipulated that the act of the hit-and-run vehicle was a proximate cause of the accident.

The policy covering the Lopez vehicle contained the uninsured motorist coverage required by Insurance Code, § 11580.2. It provided, in statutory terms, that the insurer would pay all sums which the insured would become legally entitled to recover as damages for bodily injury from the owner or operator of an uninsured motor vehicle. An uninsured motor vehicle included a hit-and-run automobile 'which causes bodily injury to an insured arising out of physical contact of such automobile with the insured or with an automobile which the insured is occupying * * *' (Italics added.)

The sole issue is whether there was physical contact between the hit-and-run vehicle and the Lopez automobile so as to bring the accident within the coverage of the policy. Interinsurance, the insurer, sought a judicial declaration of non-liability under the policy on the ground that there had been no physical touching between the hit-and-run vehicle and the insured automobile. The trial court accepted this view and declared that Interinsurance was not obligated on the policy.

To put the case abstractly, Car X hit Car B and propelled it into Car C. Car X fled the scene of the accident and is unknown. The act of Car X was a proximate cause of the accident. Can Car C recover from its insurer under the uninsured motorist provisions of its policy?

The uninsured motorist coverage imposed by Insurance Code, § 11580.2 is California's response to the problem of the financially irresponsible motorist. (Comment, 48 Cal.L.R. 516.) By requiring all policies to contain uninsured motorist coverage (or an express waiver) the Legislature attempted to broaden the protection of innocent drivers against negligent and financially irresponsible motorists. (Report of Traffic Accident Consequences Subcommittee, Assembly Journal Appendix, Reg. Session, 1959, Vol. 3, pp. 14-15.)

The original law in 1959 did not specify any requirement for physical contact between vehicles. (Stats. 1959, ch. 817, § 1.) The law was amended in 1961, however, to impose three limitations on the coverage against a hit-and-run automobile: there must have been physical contact with the unknown vehicle, the accident must have been reported to the police within 24 hours, and a claim must have been filed with the insurer within 30 days. (Stats. 1961, ch. 1189, § 2.) These amendments, as the trial court noted, were designed to curb fraud, collusion, and other abuses arising from claims that phantom cars had caused accidents which, in fact, had resulted solely from the carelessness of the insured. For example, a driver who fell asleep and hit a telephone pole might claim he had swerved off the road to avoid being hit by an unidentified vehicle. The provision requiring physical contact with the unknown vehicle was added to the statute in order to eliminate such fictitious claims. (Chadwick, California's Uninsured Motorist Statute, 13 Hast.L.J. 194, 197-198.)

Appellants suggest that we are dealing with a sequence of events set in motion by the hit-and-run vehicle which proximately caused physical contact with the insured vehicle, and that proof of proximate causation satisfies the statutory requirement for physical contact. They rely on familiar tort doctrines which establish a defendant's liability for all consequences which follow the setting in motion of a causal force, when no new force intervenes. (Prosser, Torts, 3rd ed., § 50, pp. 303-304.) We think this argument proves too much. For example, if Car X had swerved in front of Car B causing it to lose control and strike Car C, then the act of Car X would have been the proximate cause of the accident without having touched either Car B or Car C. If the physical contact requirement of the statute could be satisfied by merely showing that the hit-and-run vehicle was the proximate cause of the accident, then this provision would be largely written out of the statute. We are unwilling to do this, for the protection against phantomcar frauds would be diluted and the door reopened to the abuses found to have arisen prior to the 1961 amendments. In our view the question of proximate cause is largely irrelevant to the determination whether or not physical contact occurred. Our conclusion is reinforced by a series of New York cases which reject the proximate cause argument and enforce the physical contact requirement of a similar statute. (Bellavia v. Motor Vehicle Accident Indem. Corp., 28 Misc.2d 420, 211 N.Y.S.2d 356; In re Portman's Petition, 33 Misc.2d 385, 225 N.Y.S.2d 560, 562; Motor...