Pham v. Allstate Ins. Co.

• Decision Date: 23 December 1988
• Docket Number: No. B032533,B032533
• Citation: 254 Cal.Rptr. 152,206 Cal.App.3d 1193
• Court: California Court of Appeals Court of Appeals
• Parties: OANH THI PHAM, Plaintiff and Respondent, v. ALLSTATE INSURANCE COMPANY, a corporation, Defendant and Appellant.

Page 152

254 Cal.Rptr. 152

206 Cal.App.3d 1193

OANH THI PHAM, Plaintiff and Respondent, v. ALLSTATE INSURANCE COMPANY, a corporation, Defendant and Appellant.

No. B032533.

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

Dec. 23, 1988.

Review Denied March 2, 1989.

Hiestand & Brandt, Los Angeles, for defendant and appellant [Allstate].

Donald M. Gindy, Los Angeles, for plaintiff and respondent [Pham].

COMPTON, Associate Justice.

Plaintiff Oanh Thi Pham commenced a declaratory relief action against defendant Allstate Insurance Company (Allstate) seeking a determination that she was entitled to uninsured motorist benefits under a policy issued by Allstate. The court found in favor of plaintiff. Allstate appeals. We affirm.

The case was tried on an agreed statement of facts which provided, in pertinent part, as follows: "On or about August 29, 1986, plaintiff was an occupant in a 1978 Oldsmobile serial number 3Q35R8C147446 which was insured with defendant under policy number 024740633104632801. [p ] At such time, plaintiff was traveling northbound, when an unidentified dump truck approached plaintiff's vehicle in a southbound direction, as the vehicles passed each other, a rock fell off the truck and bounced on the highway and then penetrated the windshield of the vehicle in which plaintiff was an occupant, striking her and causing bodily injuries. [p ] Plaintiff informed defendants of her claim under the uninsured motorist protection provided under the above-mentioned insurance policy."

Insurance Code section 11580.2, subdivision (a)(1) commands that uninsured motorist coverage must afford protection against injuries resulting from "hit-and-run" drivers. Specifically, it declares that the term " 'uninsured motor vehicle' means a motor vehicle with respect to the ownership, maintenance or use of which there is no bodily injury liability insurance or bond applicable at the time of the accident ... or the owner or operator thereof be unknown, provided that, with respect to an 'uninsured motor vehicle' whose owner or operator is unknown: [p ] (1) The bodily injury has arisen out of physical contact of the automobile with the insured or with an automobile which the insured is occupying." (Ins. Code, § 11580.2, subd. (b).)

In the instant case, Allstate's policy, in slightly different language, provided the coverage mandated by the statute. It provided that Allstate would "pay all damages that an insured person is legally entitled to recover from the owner or operator of an uninsured auto ..." and that "[a]n uninsured auto is ... [p ] 3. a hit-and-run motor vehicle which causes: a) bodily injury to an insured person by physical contact with the insured person or with a vehicle occupied by that person. The identity of the operator and the owner of the vehicle must be unknown. The accident must be reported within 24 hours to the proper authorities. We must be notified within 30 days." (Emphasis in original.)

The trial court concluded that the definitional language of Allstate's policy encompassed a rock falling from a dump truck. The court stated: "[The policy] doesn't say that the motor vehicle itself has to have physical contact. It just causes physical contact. And if the rock came off the truck, it caused that rock--in effect, it caused physical contact with the insured person. [p ] I think the policy language is clear and unambiguous in that regard. And I have no doubt but that the [Allstate's] automobile policy can expand the coverage covered under the uninsured motorist code and therefore I don't think it is necessary for me to even construe the language of the statute."

On appeal, Allstate asserts that its policy furnishes plaintiff no more coverage than required by Insurance Code section 11580.2, and that under the case authorities interpreting the statute, a dislodged rock cannot constitute "physical contact" between the unknown vehicle and the insured. We agree that the policy provision is no broader than the statute. Its interpretation is another matter.

As we noted in Inter-Insurance Exchange v. Lopez (1965) 238 Cal.App.2d 441, 443-444, 47 Cal.Rptr. 834, "The original [uninsured motorist statute] in 1959 did not specify any requirement for physical contact between vehicles. [Citation.] 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. [Citation.] These amendments ... 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.... The provision requiring physical contact with the unknown vehicle was added to the statute in order to eliminate such fictitious claims. [Citation.]" (See also Orpustan v. State Farm Mut. Auto. Ins. Co. (1972) 7 Cal.3d 988, 994, 103 Cal.Rptr. 919, 500 P.2d 1119; Boyd v. Interinsurance Exchange (1982) 136 Cal.App.3d 761, 763, 186 Cal.Rptr. 443.)

In Lopez, a hit-and-run driver struck one Clements, propelling the car driven by Clements into Lopez' vehicle. Finding no physical contact between the unknown driver and Lopez, the trial court declared that there was no coverage. (Inter-Insurance Exchange v. Lopez, supra, 238 Cal.App.2d 441, 442-443, 47 Cal.Rptr. 834.) On appeal, however, we reversed. In so doing, we observed that "when the Legislature established the requirement of physical contact in the present law, it intended to make a distinction between a direct and an indirect application of force similar to that which the common law had earlier found useful in distinguishing between trespass and [trespass on the] case. In our view a direct application of force, as by Car X striking Car B and forcing it to hit Car C, qualifies as physical contact within the meaning of the statute." (Id. at p. 445-446, 47 Cal.Rptr. 834.) We also suggested that "If Car X had lost a wheel and the wheel had hit Car C, this would clearly be direct physical touching of Car C by a part of Car X." (Id. at p. 444, 47 Cal.Rptr. 834.)

Here, in an uninterrupted chain, a rock tumbling from the passing dump truck struck the ground and rebounded into the windshield of the insured vehicle in which plaintiff was an occupant. There was no intervening force to break the chain of causation, nor did the rock first come to rest before colliding with the car. (Cf. Barnes v. Nationwide Mutual Ins. Co. (1986) 186 Cal.App.3d 541, 230 Cal.Rptr. 800, wherein the court held that a vehicle striking an inert box of dinette chairs which sometime earlier had fallen off a truck did not satisfy the physical contact requirement.)

Allstate, nevertheless, relies on two cases from other jurisdictions which have refused to find that debris from an unknown vehicle can result in physical contact within the meaning of their uninsured motorist statutes. In Kersten v. Detroit Auto. Inter-Insurance Exchange (1978), 82 Mich.App. 459, 267 N.W.2d 425, the Michigan Court of Appeals held that an...