State Farm Mut. Auto. Ins. Co. v. Carlson

• Citation: 130 Ga.App. 27,202 S.E.2d 213
• Decision Date: 24 September 1973
• Docket Number: No. 1,No. 48203,48203,1
• Parties: STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY v. Robert F. CARLSON, Sr., et al
• Court: Georgia Court of Appeals

Page 213

202 S.E.2d 213

130 Ga.App. 27

STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY v. Robert F. CARLSON, Sr., et al.

No. 48203.

Court of Appeals of Georgia, Division No. 1.

Sept. 24, 1973.

Rehearing Denied Oct. 18, 1973.

Syllabus by the Court

1. Where an unknown hit and run motorist strikes a third vehicle which third vehicle in turn strikes the insured vehicle there is 'actual physical contact' within the meaning of the contractual requirement contained in an uninsured motorist policy and under the provisions of the Uninsured Motorist Act.

2. A government owned vehicle operated by a government employee acting within the scope of his employment is not excluded from uninsured motorist coverage by the terms of the Uninsured Motorist Act.

This is an action in the nature of a declaratory judgment in which certain rights of the appellees (plaintiffs) under a contract of insurance with the appellant (defendant) are to be determined.

The facts as stipulated by the parties are: 'On April 10, 1972, Robert F. Carlson, Sr. was operating a 1967 Ambassador automobile in a southerly direction on U.S. Highway #17 approximately four miles south of Richmond Hill in Bryan County, Georgia. At said time and place his son, Robert F. Carlson, Jr. was a passenger in this vehicle.

'As plaintiffs approached the point where the collision hereinafter described occurred, defendant James Lloyd Harn was operating a 1972 Ford truck in a northerly direction on U.S. Highway #17. The vehicle operated by defendant Harn was owned by the Georgia State Game & Fish Commission. At all times material to this matter, defendant Harn was an employee of said commission and acting within the scope of his employment.

'A third vehicle was also being operated in a southerly direction on said highway and as it approached the point where the collision occurred, the driver attempted to pass a line of traffic in which the Carlson vehicle was the lead automobile. While attempting to pass the Carlson vehicle, this third vehicle collided with the vehicle operated by defendant Harn and defendant Harn's vehicle in turn collided with the Carlson vehicle. Immediately following this collision, this third vehicle fled and the identity of the driver and the vehicle are unknown to the parties. There was no physical contact between the unknown hit-and-run vehicle and the Carlson vehicle. The unknown hit-and-run vehicle made contact with the vehicle operated by defendant Harn which in turn made contact with the Carlson vehicle.

'At the time of the collision, the Carlson vehicle was covered by the policy of insurance issued by State Farm Mutual Automobile Insurance Company, a copy of which is attached to plaintiffs' complaint as Exhibit 'A'. Among its other provisions, this policy afforded coverage for damages sustained by Carlson or the occupants of his vehicle as a result of the neglect or wrongdoing of any uninsured motorists.

'At the time of the collision, the Georgia State Game & Fish Commission, an agency of the State of Georgia, did not maintain liability insurance nor had it posted a bond or securities in lieu of such insurance and it was immune from suit as an arm of the State of Georgia. At the time of the collision, defendant James Lloyd Harn did not maintain liability insurance which would cover his operation of the vehicle owned by the Georgia State Game & Fish Commission nor had he posted a bond or securities in lieu of such insurance.'

The questions to be answered were: 1. Is the requirement of 'actual physical contact' under the Uninsured Motorist Act of Georgia and the contract requirement of 'physical contact' under the terms of the policy of insurance met where an unknown hit-and-run motorist strikes a third vehicle, which third vehicle in turn strikes the insured vehicle? 2. Does the Uninsured Motorist Act of Georgia permit a policy of insurance to exclude from Uninsured Motorist coverage a government-owned vehicle operated by a government employee acting within the scope of his employment?

The trial judge entered a judgment in favor of the plaintiffs.

Miller, Beckmann & Simpson, Luhr G. C. Beckmann, Jr., Savannah, for appellant.

Findley & Ratcliffe, Thomas J. Ratcliffe, Jr., Claxton, for appellees.

QUILLIAN, Judge.

1. While these are questions of first impression in this state, they have been decided in other courts. Code Ann. § 56-407.1(b) (Ga.L.1963, p. 588; 1964, p. 306; 1967, pp. 463, 464; 1968, pp. 1089, 1091; 1968, pp. 1415, 1416; 1971, pp. 926, 927; 1972, pp. 882, 883) states in its material part: 'A motor vehicle shall be deemed to be uninsured if the owner or operator thereof be unknown: . . . Provided, that, in order for the insured to recover under the indorsement where the owner or operator of any motor vehicle which causes bodily injury or property damage to the insured is unknown, actual physical contact must have occurred between the motor vehicle owned or operated by such unknown person and the person or property of the insured.'

As is well stated in appellees' brief: 'By either statutory provision or judicial decision, other jurisdictions have imposed a 'physical contact' requirement upon the right of an insured to recover against the unknown hit-and-run motorist. The object of this requirement is to eliminate fictitious claims of a driver who, through his own negligence, causes injury to himself without the involvement of another vehicle, and then seeks recovery on the grounds that it was due to a fictitious hit-and-run driver with the resulting fraud being perpetrated against the insurance company. See 25 A.L.R.3d 1299 for a detailed summary of this subject. Those jurisdictions which have been confronted with the issue before this court, both having a statutory requirement and a judicially established requirement,...