Throesch v. U.S. Fidelity & Guar. Co.
| Citation | 100 F.Supp.2d 934 |
| Decision Date | 10 February 2000 |
| Docket Number | No. 3:98CV00462 WRW.,3:98CV00462 WRW. |
| Court | U.S. District Court — Eastern District of Arkansas |
| Parties | Beth R. THROESCH, Plaintiff, v. UNITED STATES FIDELITY & GUARANTY COMPANY, Defendant. |
Dick A. Jarboe, Attorney at Law, Walnut Ridge, AR, for Beth R. Throesch, plaintiff.
Robert D. Trammell, Gill Allen Rogers, Trammell Law Firm, Little Rock, AR, for St. Paul Fire & Marine Insurance Company fka United States Fidelity & Guaranty Company, defendant.
Pending before the Court is Defendant's Motion for Summary Judgment (Doc. No. 26), and Plaintiff's Response (Doc. No. 35). Telephone conferences regarding the issues discussed below were held on January 5, 2000, and January 10, 2000. The Motion is GRANTED in part and DENIED in part.
On August 26, 1997, plaintiff was traveling on U.S. Highway 67 when another vehicle allegedly crossed the center line into her lane. In order to miss the other vehicle, plaintiff drove off the shoulder of the road and lost control of her vehicle, which overturned and rolled, damaging the vehicle and injuring the plaintiff. Two people witnessed the accident and support plaintiff's version of the wreck.
The driver of the other vehicle did not stop and identify himself, and plaintiff's attempts to locate him have been fruitless. There is no evidence that plaintiff's vehicle and that of the unknown driver contacted one another.
At the time of the accident, plaintiff was covered by an automobile liability insurance policy (the policy) issued by United States Fidelity & Guaranty Company (defendant). The policy contained an uninsured motorist provision (UM provision) which provided coverage for damages caused by an "uninsured motor vehicle." The policy defined an uninsured motor vehicle as a land motor vehicle or trailer of any type:
1. To which no bodily injury liability bond or policy applies at the time of the accident.
... [or]
3. Which is a hit-and-run vehicle whose operator or owner cannot be identified and which hits:
a. You or a "family member";
b. A vehicle which you or any "family member" are "occupying", or
c. "Your covered auto".
An Arkansas statute creates a presumption that a motorist is uninsured if he fails to file an accident report as required in Ark.Code Ann. § 27-19-503 .
There shall be a presumption created that a motorist who has failed to file, or caused to be filed in his behalf, within ninety (90) days of the date of an accident, a certificate proving he is insured in at least minimum insurance limits as required by law, is uninsured, and any person alleging or contending that the motorist is insured shall have the burden of proving that coverage.
The defendant has filed a Motion for Summary Judgment arguing: first, that the "hit-and-run" provision of the policy requires physical contact; second, that Ark.Code Ann. § 27-19-503 does not create a presumption that the unknown driver and the automobile he was driving were uninsured; third, that Ark.Code Ann. § 27-19-503 is inapplicable to uninsured motorist claims; and fourth, that Ark.Code Ann. § 27-19-503 is unconstitutional.
Whether coverage exists for the Plaintiff under the "hit-and-run" provision of the policy depends on whether the phrase "which hits" is ambiguous. The determination of whether an ambiguity in an insurance policy exists rests with the court. See Allstate Ins. Co. v. Burrough, 914 F.Supp. 308, 311 (W.D.Ark.1996) (citations omitted). To determine whether a term in an insurance policy is ambiguous, there must be a determination that the term is susceptible to more than one reasonable interpretation. See id. When a policy provision is deemed ambiguous, the court must resolve that ambiguity and construe the policy liberally in favor of the insured and strictly against the insurer. See id. Obviously, however, the court cannot rewrite the policy or find an ambiguity that does not exist. See id.
The policy here defines an uninsured motor vehicle as a hit-and-run vehicle "which hits." Defendant asserts this means a motor vehicle accident involving physical contact. Plaintiff contends that "hit" is ambiguous and could include an accident without physical contact.
There is no Arkansas case law interpreting "which hits;" however, the Court of Appeal of Louisiana has examined an insurance policy which contained this same language. See Bruner v. USAA Property & Casualty Ins. Co., 649 So.2d 584 (La. App.1994). The court in Bruner held:
We find that the language of the policy is clear and unambiguous and the policy issued to Mr. Bruner only provides coverage for a "hit and run" accident when there is a "hit," i.e. a physical contact between the insured's vehicle and the phantom vehicle.
Plaintiff cited several cases from other jurisdictions which held that the phrase "hit-and-run" was ambiguous and, thus, the policies did not necessarily require physical contact. See Hartford Accident & Indem. Co. v. Novak, 83 Wash.2d 576, 520 P.2d 1368 (1974); Pin Pin H. Su v. Kemper Ins. Cos., 431 A.2d 416 (R.I.1981); and Royal Ins. Co. v. Austin, 79 Md.App. 741, 558 A.2d 1247 (1989). None of those cases, however, involved interpreting wording similar to that of the policy at issue here. The policy here clarifies "hit-and-run" (if there is an ambiguity). It provides coverage for a "hit-and-run vehicle ... which hits."
The Court agrees with the Louisiana Court of Appeal's interpretation. The language of the policy is clear. The hit-and-run vehicle must hit the plaintiff for coverage under the "hit-and-run" provision of the policy to apply.
Plaintiff argues the requirement of physical contact is unconscionable because plaintiff reasonably expected she would have uninsured motorist coverage in this situation and the definition is unconscionably written to avoid liability, even where there are disinterested witnesses to testify regarding fault, merely because there was no contact.
While the Arkansas Supreme Court has not addressed this specific argument, it has held that an insurance policy does not violate public policy when it requires physical contact before providing coverage under a hit-and-run provision. See Ward v. Consolidated Underwriters, 259 Ark. 696, 699, 535 S.W.2d 830, 832 (1976). The policy in Ward provided coverage for bodily injuries "arising out of physical contact" with a hit-and-run vehicle. See id. at 697, 535 S.W.2d at 831. The Arkansas Supreme Court held this provision actually afforded the plaintiff greater rights than the uninsured motorist statute required. See id. at 698-99, 535 S.W.2d at 832. Under Arkansas law, the plaintiff ordinarily bears the burden of proving the other car was uninsured. See id. at 698, 535 S.W.2d at 831. The policy in Ward provided that the plaintiff did not have to prove the other motorist was uninsured in a hit and run situation where the plaintiff was actually hit. See id. at 698, 535 S.W.2d at 832.
Likewise, the policy here provides that where the plaintiff can prove she was hit and that the operator or owner of the vehicle cannot be identified, the plaintiff has met her burden of establishing coverage. This does not mean, however, that the plaintiff does not have insurance coverage unless she was hit. It simply means that where the plaintiff was not hit, the plaintiff bears her ordinary burden of proving the other car was uninsured.
The language of the policy is clear, and, in view of Ward, supra, this Court does not believe the Arkansas Supreme Court would view it as unconscionable. Defendant's Motion for Summary Judgment on this point is GRANTED.
Under the Motor Vehicle Safety Act, the driver of a vehicle which is involved in an accident within this state is required, under certain circumstances, to report the accident within 30 days to the Department of Finance and Administration on a form approved by that office. See Ark.Code Ann. § 27-19-501 . As noted above, Ark.Code Ann. § 27-19-503 provides:
There shall be a presumption created that a motorist who has failed to file, or caused to be filed in his behalf, within ninety (90) days of the date of an accident, a certificate proving he is insured in at least minimum insurance limits as required by law, is uninsured, and any person alleging or contending that the motorist is insured shall have the burden of proving that coverage.
(emphasis added).
Defendant argues this only creates the presumption that the driver of the vehicle does not have any insurance and that it does not address whether the vehicle was covered by insurance.
Where the language of a statute is plain and unambiguous, we give the language its plain meaning.... However, when the statute is ambiguous, we must give effect to the intent of the legislature in adopting the statute.... As far as practicable, we must give effect to every part of the statute, reconciling the different provisions to make them consistent, harmonious, and sensible.
McGee v. Armorel Pub. Schs., 309 Ark. 59, 63, 827 S.W.2d 137, 139 (1992).
Ark.Code. Ann. § 27-19-507 states "the driver or the owner of the vehicle involved in the accident shall furnish any additional revenue information as the office may require." Further, the report required by Ark.Code Ann. § 27-19-501 is designed to aid the office in determining whether the requirements for the deposit of security are inapplicable by reason of the existence of insurance or other exceptions specified in the Act. See Ark.Code Ann. § 27-19-502 . Security does not have to be provided where an insurance policy covers either the driver or the owner of the automobile. See Ark.Code Ann. § 27-19-604 . To hold Ark. Code Ann. § 27-19-503 only creates the presumption that the...
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...Safety Responsibility Act, is applicable to a civil suit to collect uninsured — motorist benefits. In Throesch v. United States Fidelity & Guar. Co., 100 F.Supp.2d 934 (E.D.Ark.2000), the federal district court held that the statutory presumption did apply to such a suit and that the presum......