Nat. Union Fire Ins. Co. of Pittsburgh v. Binker

• Decision Date: 15 July 1987
• Docket Number: Civ. A. No. 83-3104 SSH.
• Citation: 665 F. Supp. 35
• Parties: NATIONAL UNION FIRE INSURANCE COMPANY OF PITTSBURGH, PA., Plaintiff, v. Bonnie L. BINKER, Individually, as Administratrix of the Estate of Carl William Binker, Jr., and as Legal Representative of Christiana Binker, Michele Binker, and Georgia Binker, Defendant and Third-Party Plaintiff, v. The TRAVELERS INDEMNITY CO., Third-Party Defendant.
• Court: U.S. District Court — District of Columbia

665 F. Supp. 35

NATIONAL UNION FIRE INSURANCE COMPANY OF PITTSBURGH, PA., Plaintiff, v. Bonnie L. BINKER, Individually, as Administratrix of the Estate of Carl William Binker, Jr., and as Legal Representative of Christiana Binker, Michele Binker, and Georgia Binker, Defendant and Third-Party Plaintiff, v. The TRAVELERS INDEMNITY CO., Third-Party Defendant.

Civ. A. No. 83-3104 SSH.

United States District Court, District of Columbia.

July 15, 1987.

Christine A. Nykiel, Washington, D.C., for plaintiff.

David H. Cox, Edward C. Bacon, Landover, Md., for intervenor Nat'l Union Fire Ins. Co. of Pittsburgh (Workman's Compensation Div.).

John M. Clifford, Washington, D.C., William T. Freyvogel, Arlington, Va., for defendant and third-party plaintiff.

David P. Durbin, Washington, D.C., for Travelers.

MEMORANDUM OPINION

STANLEY S. HARRIS, District Judge.

This matter is before the Court on plaintiff's motion for summary judgment and on the motion of plaintiff's Workmen's Compensation Division for leave to intervene. Plaintiff, National Union Fire Insurance Company of Pittsburgh, Pa. (National Union), filed this suit on October 20, 1983, seeking a declaratory judgment that an automobile liability policy issued by National Union to The Evening Star Newspaper Company and Times News Holdings, Inc. (Evening Star), does not provide coverage for a fatal accident involving an unidentified motorist and defendant Bonnie Binker's late husband. Mrs. Binker and the third-party defendant, The Travelers Indemnity Company (Travelers), oppose the motions. (Travelers was the decedent's personal insurance carrier.)

Background

This case has been stayed pending resolution of a related case in the District of Columbia's Article I courts. In Doe v. Binker, 492 A.2d 857 (D.C.1985), the District of Columbia Court of Appeals upheld a $200,000 damage award to Mrs. Binker and her three daughters against John Doe, the unidentified driver of the car that caused the accident in which Binker's husband died. This suit now involves enforcement of that judgment.

The defendant's decedent, Carl William Binker, Jr., delivered newspapers for The Evening Star, utilizing a truck owned and insured by The Evening Star. On September 5, 1979, at approximately 6:30 in the evening, Binker was returning to The Evening Star's facilities in the District of Columbia after finishing his Virginia deliveries. He was driving on the Rochambeau (14th Street) Bridge within the District of Columbia. Leon Towell, a 15-year-old "jumper," also was in the truck. It was raining very hard, visibility was poor, and there were high winds. According to Towell's testimony in the Superior Court of the District of Columbia, because of the adverse weather conditions Binker was driving below the speed limit with the truck's headlights on, and with the windshield wipers and defroster operating. Binker's truck was in the second lane from the left of the bridge's four lanes. A small Toyota truck was stopped in the same lane, but its lights and emergency flashers were not in operation. When Binker saw the truck, he swerved into the clear left lane. However, he lost control of the truck and hit the left side of the bridge's concrete guard rail. When Binker swerved back to the right, the truck tipped onto two of its four wheels. The truck crossed four lanes of traffic, fell on its side and slid into the right side of the bridge. After the truck came to a stop, a third vehicle, driven by Donald E. Peden, hit the truck, causing an explosion of its gas tank. Towell escaped from the burning vehicle, but Binker, sadly, could not. He subsequently died. The District of Columbia Court of Appeals ultimately characterized the accident as one involving an "unidentified driver." (I.e., the driver of the stopped Toyota which Binker swerved to avoid.)

The Evening Star's truck was insured with National Union. The insurance contract covered accidents involving uninsured motorists. Section V of the policy's Uninsured Motorists Insurance schedule defines two types of uninsured highway vehicles:

(a) a highway vehicle 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 highway vehicle 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 vehicle, 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 vehicle;

* * * * * *

The policy defines a "hit-and-run vehicle" as:

a highway 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, provided:

(a) there cannot be ascertained the identity of either the operator or owner of such highway vehicle;

* * * * * *

The policy complied with the District of Columbia's insurance laws in effect at the time of the accident. See D.C.Code §§ 40-401 et seq. (1981).

Discussion

I. Plaintiff's Motion for Summary Judgment

National Union moves for summary judgment on the ground that the clear language of the insurance policy excludes coverage when, as in this case, there is no physical contact between the insured and the unidentified driver. Mrs. Binker does not challenge the textual meaning of the policy, but argues that Virginia law is controlling and that under that state's law the relevant policy provisions are void. Alternatively, Mrs. Binker contends that even if District of Columbia law is applied, the "contact" requirement of the hit-and-run provision is void as against public policy. Third-party defendant Travelers opposes the motion on the grounds that the terms of the insurance contract are ambiguous and that Virginia law should apply.

A. Application of District of Columbia Law

There can be no serious doubt that enforcement of the insurance policy as written, will result in a denial of coverage. Under the terms of the policy, Mrs. Binker is entitled to benefits only if she can demonstrate that the unidentified driver's Toyota truck falls within one of the policy's two classes of "uninsured highway vehicles." See Robinson v. Aetna Life Insurance Co., 288 A.2d 236, 238 (D.C.1972) (claimant must bring herself within the terms of the policy). However, because John Doe's true identity is unknown, she cannot prove that he lacks insurance.¹ Also, because there unquestionably was no contact between Doe's truck and Binker's truck, there was no hit-and-run.² Thus, Mrs. Binker may recover only if the Court declines to enforce the contact requirement of the hit-and-run provision.

The Court may not hold that the contact requirement is void as violative of the public policy of the District of Columbia. Although the District of Columbia courts have not addressed this issue, a number of courts in other jurisdictions have held that analogous physical contact provisions did not violate the public policy of their jurisdictions. See, e.g., Grace v. State Farm Mutual Automobile Insurance Co., 197 Neb. 118, 246 N.W.2d 874, 877 (1976); Buckeye Union Insurance Co. v. Cooperman, 33 Ohio App.2d 152, 293 N.E.2d 293, 298 (1972); Citizens Mutual Insurance Co. v. Jenks, 37 Mich.App. 378, 194 N.W.2d 728, 731 (1971). Mrs. Binker provides no basis for concluding that the courts of this jurisdiction would construe "public policy" differently than those courts which have upheld the contact requirement.³

Moreover, it appears that when courts have refused to enforce contact provisions on public policy grounds, they have done so based upon a finding that the provision conflicted with existing statutory language. See, e.g., Surrey v. Lumbermens Mutual Casualty Co., 384 Mass. 171, 424 N.E.2d 234, 236 (1981); Pin Pin H. Su v. Kemper Insurance Cos., 431 A.2d 416, 419 (R.I.1981); Brown v. Progressive Insurance Co., 249 So.2d 429, 430 (Fla.1971). No such statute applies to this case. Accordingly, the Court may not hold that the District of Columbia courts would refuse, on public policy grounds, to enforce the insurance policy at issue.

B. Application of Virginia Law

The State of Virginia statutorily regulates uninsured motorist insurance, unlike the District of Columbia.⁴ The Virginia Uninsured Motorist Act, codified at Va. Code Ann. § 38.1-381 (1981), requires the inclusion of uninsured motorist coverage in any automobile liability policy "issued or delivered" in Virginia, or issued by an insurer licensed to do business in Virginia, if the insured vehicle is "principally garaged or used in" Virginia.⁵Id. at § 38.2-2206(A). It is undisputed that National Union is licensed to issue policies in Virginia, and that The Evening Star truck driven by the decedent was not garaged in Virginia.⁶ Thus, applicability of the Virginia statute depends upon a showing that the vehicle was principally used in Virginia.⁷

The parties disagree on whether the "principally used" criterion is satisfied here. Consequently, it is impossible for the Court to determine on the record presented whether Virginia law applies. However, a factual issue is not "material" unless its determination potentially will affect the outcome of a case. If a District of Columbia court would refuse to enforce the Virginia statute regardless of whether the requisite conditions are met, the fact is not material and would not preclude summary judgment. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). Therefore, for the purposes of this Memorandum Opinion, the Court feels that it must assume that Binker's delivery truck was principally used in Virginia.

Although Virginia law does not expressly prohibit physical contact provisions...