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

• Decision Date: 08 May 1978
• Citation: 386 A.2d 670
• Parties: STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, an Illinois Corporation, Defendant below, Appellant, v. Helen ABRAMOWICZ, Plaintiff below, Appellee.
• Court: United States State Supreme Court of Delaware

Page 670

386 A.2d 670

STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, an Illinois Corporation, Defendant below, Appellant, v. Helen ABRAMOWICZ, Plaintiff below, Appellee.

Supreme Court of Delaware.

Submitted Feb. 21, 1978.

Decided May 8, 1978.

Upon appeal from Superior Court.

Affirmed.

Michael Weiss of Kimmel & Spiller, Wilmington, for defendant below, appellant.

Samuel V. Abramo of Abramo & Abramo, Wilmington, for plaintiff below, appellee.

Before HERRMANN, C. J., and DUFFY and McNEILLY, JJ.

McNEILLY, Justice:

Plaintiff was injured in an automobile accident, and thereafter, brought a declaratory judgment action to determine whether defendant-insurer was liable for her damages suffered as a result of the accident. Defendant moved for summary judgment in the Superior Court, basing its motion on the allegation that the terms of the insurance contract excluded liability. Defendant appeals the denial of its motion; ^* we affirm.

I

Plaintiff was seriously injured when the automobile in which she was riding was forced off the roadway and into several parked cars, as a result of the alleged negligence of the operator of an unidentified motor vehicle. Neither party disputes the fact that there was no actual physical contact between plaintiff's car and the unidentified vehicle.

At the time of the accident plaintiff was insured by defendant. The insurance contract contained an uninsured motorist provision which purportedly provided the mandatory uninsured motorist protection coverage required by 18 Del.C. § 3902, including coverage for bodily injury and property damage caused by a hit-and-run vehicle. Defendant denies coverage and liability in the present case alleging that the accident did not involve a hit-and-run motor vehicle, defined in the insurance policy as:

A motor vehicle which caused an accident resulting in bodily injury to an insured or property damage arising out of physical contact of such motor vehicle with the person or property of the insured or with a motor vehicle which the insured is occupying at the time of the accident. (emphasis added)

Relying on the above-quoted contractual provision, defendant moved for summary judgment in the Superior Court. Plaintiff argued in response to defendant's motion that the physical contact requirement in the policy was more restrictive than 18 Del.C. § 3902, which does not expressly require physical contact, and, therefore, the policy limitation is void as against the public policy expressed in § 3902.

II

The denial of defendant's motion being interlocutory is appealable only if:

"there has been the determination of a substantial issue and the establishment of a legal right." Gardinier, Inc. v. Cities Service Co., Del.Supr., 349 A.2d 744 (1975) and cases cited therein.

We find that the ruling in this case determined a substantial issue, viz., the validity of a contract provision essential to the position of the parties, and it established the legal right of plaintiff to recover her damages pursuant to the insurance policy, if she can prove her losses. Therefore, the order under consideration is appealable.

III

Protection against injuries and damages caused by uninsured motorists is an area widely regulated by statute. The purpose of this type of legislation is to protect innocent persons injured by the negligence of tortfeasors who are unknown, or who have no means for recompensing the injured parties. Insurance policy provisions designed to reduce or limit the coverage to less than that prescribed by statute are void. The Delaware statute, 18 Del.C. § 3902, reads in its pertinent part as follows:

"No policy insured against liability arising out of the ownership, maintenance or use of any motor vehicle shall be delivered or issued for delivery in this State with respect to any such vehicle registered or principally garaged in this State unless coverage is provided therein or supplemental thereto for the protection of persons insured thereunder who are legally entitled to recover damages from owners or operators of uninsured or hit-and-run motor vehicles for bodily injury, sickness or disease, including death, or personal property damage resulting from the ownership, maintenance or use of such uninsured or hit-and-run motor vehicle. Except, that no such coverage shall be required in or supplemental to a policy where rejected in writing, on a form furnished by the insurer describing the coverage being rejected, by an insured named therein, or upon any renewal of such policy unless the coverage is then requested in writing by the named insured. The coverage herein required may be referred to as 'uninsured vehicle coverage.' "

The Delaware Legislature chose not to insert an express physical contact requirement into § 3902, as has been done in similar laws in other jurisdictions. See Annot., 25 A.L.R.3d 1294, 1299 (1969). No definition of 'hit-and-run motor vehicle' is contained in the Delaware statute. It is defendant's contention that the insurance policy definition is consistent with § 3902 as it clarifies the law, and is no more than a synonymous expression of "hit" as used in the statutory language hit-and-run. Defendant also contends the requirement of physical contact is necessary as a means of insuring against fraudulent claims.

Appellate courts of other jurisdictions with uninsured vehicle coverage laws similar to § 3902 have grappled with the problem of the validity of physical contact clauses, and have reached differing results. Two basic theories have emerged from the cases, one view which upholds their validity based on reasoning similar to that set forth by defendant, and an emerging view expressing the theory espoused by plaintiff. Plaintiff's position in our opinion expresses the better view.

The leading authority supporting the physical contact clauses is Prosk v. Allstate Insurance Co., Ill.App., 82 Ill.App.2d 457, 226 N.E.2d 498 (1967). In Prosk the Illinois Appellate Court considered a factual situation identical to that in the case sub judice, and affirmed a lower court's grant of an insurer's motion for judgment on the pleadings based on the physical contact policy requirement. In rejecting the plaintiff's contention that the policy limitation was an attempt to dilute and diminish the uninsured motorist protection mandated by statute, the Illinois Court stated:

"After considering the arguments of both sides and the authorities cited, including out-of-state pronouncements, we have concluded that there is no conflict between the statutory term 'hit-and-run motor vehicle' and the policy requirement of 'physical contact of such automobile.' The language...