State Auto. Mut. Ins. Co. v. Rowe
| Decision Date | 24 December 1986 |
| Docket Number | No. 85-2000,85-2000 |
| Citation | 28 Ohio St.3d 143,502 N.E.2d 1008,28 OBR 238 |
| Parties | , 28 O.B.R. 238 STATE AUTOMOBILE MUTUAL INSURANCE COMPANY, Appellee, v. ROWE et al., Appellants. |
| Court | Ohio Supreme Court |
Syllabus by the Court
An automobile liability insurance policy which provides coverage against injuries caused to an insured by an unidentified motorist may, consistent with R.C. 3937.18 and public policy, include a provision requiring actual physical contact between the insured or the vehicle occupied by him and the unidentified vehicle. (Travelers Indemnity Co. v. Reddick [1974], 37 Ohio St.2d 119, 308 N.E.2d 454 , approved and followed.)
On July 1, 1979, appellants, Carolyn Rowe and Peter Stefanisn, were injured when an automobile operated by Donald R. Stefanisn, and in which they were riding as passengers, was struck by a second automobile driven by Robert Rutkosky. Rutkosky, to avoid hitting a third automobile that had suddenly pulled into his lane, caused his vehicle to swerve across the center line and come in contact with the Stefanisn automobile. The third automobile and its driver, having had no physical contact with either the Rutkosky or the Stefanisn vehicles, left the scene without being identified.
Appellants were both insureds under an insurance policy issued to their driver, Donald Stefanisn, by appellee, State Automobile Mutual Insurance Company. Pursuant to the uninsured motorist coverage of this policy, appellants filed a claim with appellee to recover for their uncompensated damages. 1 This coverage provided protection for damages caused by the owner or operator of an "uninsured automobile." An "uninsured automobile" is defined in the policy as:
A "hit-and-run automobile" is defined in the policy as:
" * * * an automobile which causes bodily injury to an insured arising out of the physical contact of such automobile with the insured or with an automobile which the insured is occupying at the time of the accident, provided: (a) there cannot be ascertained the identity of either the operator or the owner of such 'hit-and-run automobile' * * *." (Emphasis added.)
Appellee denied the claim on the basis that there had been no "physical contact" between the Stefanisn automobile and the unidentified automobile as required by the hit-and-run definitional clause. After appellants demanded arbitration of their claim, appellee filed suit in the Court of Common Pleas of Cuyahoga County seeking a declaratory judgment to determine the applicability of the uninsured motorist coverage. Upon motion, the trial court granted summary judgment to appellee. The court of appeals affirmed the judgment of the trial court.
In reaching its decision, the court of appeals first examined the hit-and-run clause of the policy in light of this court's holdings in Travelers Indemnity Co. v. Reddick (1974), 37 Ohio St.2d 119, 308 N.E.2d 454 , and Yurista v. Nationwide Mut. Ins. Co. (1985), 18 Ohio St.3d 326, 481 N.E.2d 584. Reasoning, in accordance with those two cases, that a physical-contact requirement is a valid provision within the hit-and-run clause and that there was no physical contact between the Stefanisn vehicle and the unidentified vehicle, the court found that appellants were not injured by an "uninsured automobile" as defined in the hit-and-run clause. The court then addressed appellants' argument that they were covered under the uninsured automobile definitional clause (a) of the policy coverage in question since the unidentified vehicle could not be shown to have "applicable" insurance coverage. In considering this argument of appellants, the court of appeals reasoned that the definitional clauses had to be interpreted in reference to each other. The court said that because the hit-and-run clause was intended to cover unidentified or runaway vehicles, the uninsured automobile clause (a) could only logically be intended to cover identified, but uninsured, vehicles. The court concluded that because appellants did not meet the requirements for coverage as defined in the hit-and-run clause, and because uninsured automobile clause (a) was inapplicable to unidentified vehicles, appellants were precluded from recovery under the uninsured motorist provisions ofthe policy.
The cause is now before this court pursuant to the allowance of a motion to certify the record.
Cronquist, Smith, Marshall & Weaver and Jack F. Smith, Cleveland, for appellee.
Nurenberg, Plevin, Heller & McCarthy Co., L.P.A., and Anne L. Kilbane, Cleveland, for appellants.
The initial issue presented in this case is whether an uninsured motorist liability policy clause that requires "physical contact" between the insured or the vehicle occupied by him and the vehicle of an unidentified motorist, as a condition of coverage, abrogates R.C. 3937.18 or contravenes public policy. We hold that it does not.
R.C. 3937.18 provides, in pertinent part:
The uninsured motorist policy provisions provided coverage for insureds who suffer injury caused by motorists without insurance. The policy also provided coverage where the offending vehicle was unidentified providing there was actual physical contact with the insured or the automobile the insured was occupying.
Given a literal reading, the terms of R.C. 3937.18 mandate only that coverage be extended for injuries caused by identified uninsured (and underinsured) motorists. While public policy may require that insurers provide coverage to insureds who are injured by hit-and-run motorists, R.C. 3937.18 does not require coverage for injuries caused by unidentified motorists. Therefore, because the insurance policy in this case provided, in addition to the basic mandated uninsured coverage, coverage for injuries caused by an unidentified motorist, the policy actually provided more protection than that required by statute. The "physical contact" limitation set forth in the hit-and-run clause is, therefore, neither a violation of R.C. 3937.18 nor of public policy.
Accordingly, we are constrained to follow this court's holding in Reddick, supra, where we specifically held:
"An uninsured motorist provision of an automobile liability insurance policy which provides protection to one injured by a 'hit-and-run' automobile, but which restricts coverage to accidents where the injury results from physical contact of the unidentified vehicle with the insured or the automobile occupied by him, is compatible with R.C. 3937.18 and the public policy evidenced by its adoption." See, also, Yurista, supra.
Appellants argue, in the alternative, that an insured who is caused injury by an unidentified motorist, but is precluded from recovering under the "hit-and-run" clause because there was no physical contact with the unidentified motorist's vehicle, can recover under the uninsured automobile definitional clause (a) in the policy. In applying a plain-meaning interpretation to the words used in this policy, it is evident that clause (a) was intended to apply only to identified, uninsured motorists. The contract between the parties simply does not insure against injuries caused by unidentified motorists in the absence of physical contact. To read such coverage into this policy would require us to rewrite the contract of the parties and this we are not permitted or prepared to do. See Hedrick v. Motorists Mut. Ins. Co. (1986), 22 Ohio St.3d 42, 44, 488 N.E.2d 840. Thus, an automobile liability insurance policy which provides coverage against injuries caused to an insured by an unidentified motorist may, consistent with R.C. 3937.18 and public policy, include a provision requiring actual physical contact between the insured or the vehicle occupied by him and the unidentified vehicle. Travelers Indemnity Co. v. Reddick, supra, is approved and followed.
Accordingly, we conclude that appellants cannot recover under these uninsured motorist policy definitional clauses because the injury was not caused by an identified uninsured motorist nor was there any physical contact between the insureds or the vehicle they were occupying and the vehicle of an unidentified motorist.
The judgment of the court of appeals is affirmed.
Judgment affirmed.
The factual basis of this case is uncontroverted. An unidentified automobile suddenly...
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