McGlynn v. Safeco Companies of America

Decision Date19 June 1985
Docket NumberNo. 84-510,84-510
Citation701 P.2d 735,42 St.Rep. 882,216 Mont. 379
PartiesJohn McGLYNN and Gordon Tracy, Plaintiffs, v. SAFECO INSURANCE COMPANIES OF AMERICA, Defendants.
CourtMontana Supreme Court

Johnson, Skakles & Kebe; David Wing argued, Knight, Dahood, McLean & Everett; Edward Beaudette argued, Anaconda, Keller, Reynolds, Drake, Sternhagen & Johnson; P. Keith Keller, Helena, for plaintiffs.

Williams Law Firm, Richard Ranney argued, Missoula, for defendants.

HUNT, Justice.

The United States District Court for the District of Montana, Butte Division, W.D. Murray, J., certified the following question to this Court for resolution:

"May an insurance company issuing a policy of automobile liability insurance in the State of Montana require physical contact of a vehicle driven by an unknown driver with that of the insured, as a precondition of coverage under the uninsured motorist provision of the policy required by MCA, section 33-23-201?"

This is a case of first impression in Montana. After due deliberation, we answer the question in the negative.

On October 19, 1982, John McGlynn was riding as a passenger in a vehicle driven by Gordon Tracy. The vehicle was heading north on Interstate Highway 15, approximately 17 miles north of Butte, Montana. As their vehicle approached a bridge, another vehicle approached from the opposite direction. Just when their vehicle was a short distance from the bridge, the other vehicle crossed over the centerline into their lane of travel. In order to avoid a collision, Tracy swerved his vehicle, and in so doing, squarely struck the bridge abutment. As a result, McGlynn received serious injury, including loss of hearing, and inability to pursue the employment in which he had engaged prior to the accident.

It is undisputed there was no physical contact between the two vehicles. The other vehicle stopped briefly after the accident, but then continued on, and the identity of the driver or the vehicle remains unknown. Tracy carried insurance through Safeco Insurance Companies of America.

Following the above-described events, McGlynn filed a negligence action against Tracy, and an action against Safeco, which listed Tracy as its insured on a policy of automobile liability insurance. The claim against Safeco was based on the tortious conduct of the driver who crossed the centerline and McGlynn sought benefits under the policy's uninsured motorist provisions.

Safeco answered and filed an affirmative defense. Tracy filed a cross-claim against Safeco for uninsured motorist benefits. On November 30, 1983, the case was removed to Federal District Court in Butte on the ground of diversity of citizenship. Safeco then moved to dismiss by summary judgment, on the basis that the policy contains a clause which defines an uninsured motorist as a hit-and-run automobile, and that the accident must arise "out of physical contact of such automobile with the insured or with an automobile which the insured is occupying." Certification to this Court followed.

Joined as plaintiffs in the cross-claim against Safeco, McGlynn and Tracy contend that the physical contact requirement of the uninsured motorist provisions asserted by Safeco is repugnant to our uninsured motorist statute, Sec. 33-23-201, MCA, and to public policy, and that that requirement is therefore null and void.

They further contend that proof of absence of liability insurance of the unidentified motorist is not a condition precedent to the recovery of benefits. A separate discussion of this subissue is unnecessary because of the language contained in the policy itself.

Safeco takes the position that the statute protects only those insureds who are "legally entitled to recover" from uninsured motor vehicle operators, and that the statute should not be broadened to include unknown and unidentified motor vehicle operators as well.

Further, it asserts that if the legislature had meant to extend coverage to situations where there was no physical contact it could have so provided, and that it is not the role of the Supreme Court to create new law.

Our uninsured motorist statute, Sec. 33-23-201, MCA, contains no prerequisite of physical contact, and makes no reference to hit-and-run drivers:

"Motor vehicle liability policies to include uninsured motorist coverage--rejection by insured. (1) No automobile liability or motor vehicle liability 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 61-6-103, under provisions filed with and approved by the commissioner, 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.

"(2) The named insured shall have the right to reject such coverage. Unless the named insured requests such coverage in writing, such coverage need not be provided in or supplemental to a renewal policy where the named insured had rejected the coverage in connection with the policy previously issued to him by the same insurer."

Safeco contends its policy is in conformity with Montana's uninsured motorist statute, and that it extends coverage in words similar to the statute:

"To pay all sums which the insured or his legal representative shall be legally entitled to recover as damages from the owner or operator of an uninsured motor vehicle because of bodily injury ..." Coverage G, at 4 of policy. (Emphasis added.)

The uninsured motorist definition in the Safeco policy provides:

" 'uninsured motor vehicle' includes a trailer of any type and means:

"(a) an automobile or trailer with respect to the ownership, maintenance or use of which there is, in at least the amounts specified by the financial responsibility law of the state in which the insured automobile is principally garaged, no bodily injury liability bond or insurance policy applicable at the time of the accident with respect to any person or organization legally responsible for the use of such automobile, or with respect to which there is a bodily injury liability bond or insurance policy applicable at the time of the accident but the company writing the same denies coverage thereunder or is or becomes insolvent; or

"(b) a hit-and-run automobile;


" 'hit-and-run automobile' means an 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 at the time of the accident, provided: (1) there cannot be ascertained the identity of either the operator or the owner of such 'hit-and-run automobile'; (2) the insured or someone on his behalf shall have reported the accident within 24 hours to a police, peace or judicial officer or to the commissioner of motor vehicles, and shall have filed with SAFECO within 30 days thereafter a statement under oath that the insured or his legal representative has a cause or causes of action arising out of such accident for damages against a person or persons whose identity is unascertainable, and setting forth the facts in support thereof; and (3) at SAFECO's request, the insured or his legal representative makes available for inspection the automobile which the insured was occupying at the time of the accident." (Emphasis added.)

There is a variety of positions in jurisdictions around the country concerning whether coverage should or should not attach. The most recent opinion collecting and analyzing these positions derives from our sister state of Idaho. In Hammon v. Farmers Insurance Group (1984), 107 Idaho 770, 692 P.2d 1202, that court ruled that the policy requirement of physical contact was void as contrary to statute. We note Idaho's uninsured motorist statute contains language strikingly similar to ours, and in pertinent part, verbatim to ours:

"... for the protection of persons insured thereunder who...

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7 cases
  • Elchehimi v. Nationwide Ins. Co.
    • United States
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    • 28 d3 Dezembro d3 2005
    ...Ins. Co., 268 N.W.2d 730, 733 (Minn.1978); Dawson v. Denney-Parker, 967 S.W.2d 90, 93 (Mo.App.1998); McGlynn v. Safeco Ins. Cos. of Am., 216 Mont. 379, 701 P.2d 735, 739-40 (1985); Soule v. Stuyvesant Ins. Co., 116 N.H. 595, 364 A.2d 883, 884-85 (1976); Montoya v. Dairyland Ins. Co., 394 F.......
  • Palmer by Diacon v. Farmers Ins. Exchange
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    ...nothing further was done to investigate the claim until over a year later. On June 19, 1985, we decided McGlynn v. Safeco Insurance Company of America (1985), 216 Mont. 379, 701 P.2d 735. In that case, we held that the exclusion relied on by Farmers was void as a matter of public policy. Fo......
  • Palmer by Diacon v. Farmers Ins. Exchange, 87-459
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    ...provision to be lawful at the time. It was not until June 19, 1985, one year later, that this Court held in McGlynn v. Safeco Insurance Co. (Mont.1985), 701 P.2d 735, 42 St.Rep. 882, that such a policy provision runs contrary to the public policy and therefore is unconstitutional. McGlynn, ......
  • Miller v. U.S. Fidelity & Guar. Ins. Co.
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    ...requirement was inconsistent with the legislative policy embodied in the uninsured motorist statute. Accord, McGlynn v. Safeco Insurance Cos. of America, 701 P.2d 735 (Mont.1985). Later, however, a majority of our Supreme Court, having granted a petition for review, changed the result in Ha......
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1 books & journal articles
  • The Unidentified Wrongdoer
    • United States
    • University of Georgia School of Law Georgia Law Review (FC Access) No. 56-3, 2022
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    ...Farm Mut. Auto Ins. Co., 268 N.W.2d 730, 733 (Minn. 1978) (rejecting physical contact requirements); McGlynn v. Safeco Ins. Cos. of Am., 701 P.2d 735, 737-39 (Mont. 1985) (same); Soule v. Stuyvesant Ins. Co., 364 A.2d 883, 885 (N.H. 1976) (same); Com. Union Assur. Cos. v. Kaplan, 377 A.2d 9......

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