Travelers Indem. Co. v. Reddick

Decision Date06 March 1974
Docket NumberNo. 73-520,73-520
Citation66 O.O.2d 259,308 N.E.2d 454,37 Ohio St.2d 119
Parties, 66 O.O.2d 259 TRAVELERS INDEMNITY CO., Appellee, v. REDDICK et al., Appellants.
CourtOhio Supreme Court

Syllabus by the Court

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.

On March 8, 1970, appellants sustained injuries as the result of an automobile accident which took place in Toledo, Ohio. The accident allegedly occurred, and for purposes of this decision it will be assumed the accident did in fact occur, when the automobile in which appellants were riding was struck by an automobile which had swerved to avoid a collision with a third, unidentified vehicle. The unidentified vehicle fled the scene of the accident. It is undisputed that neither of the two automobiles involved in the collision made contact with the unidentified vehicle, and there were no witnesses to the accident other than the occupants of the two automobiles which collided.

The driver of the car occupied by appellants was insured under an automobile liability insurance policy issued by appellee. The policy provided coverage for damages resulting from bodily injuries sustained by an insured in accidents caused by 'uninsured highway vehicle(s).' 'Uninsured highway vehicle' was defined in the policy to include a 'hit-and-run vehicle,' but protection for injuries caused by a 'hit-and-run vehicle' was restricted to incidents where the injuries resulted from 'physical contact' of the unidentified automobile with the insured or the automobile occupied by him.

Appellant Vera Reddick filed a demand for arbitration with the American Arbitration Association for the purpose of arbitrating a claim under the 'uninsured motorist' provision of the policy issued by appellee. Thereupon, appellee filed a declaratory judgment action seeking a determination of the applicability of that provision to the injuries sustained by appellants.

The Court of Common Pleas rendered judgment in appellee's favor and enjoined arbitration of the claim. Upon appeal, the Court of Appeals affirmed, finding that, in the absence of physical contact between the unidentified vehicle and the insured's vehicle, appellee was not liable to appellants under its uninsured motorist coverage.

The cause is now before this court pursuant to the allowance of a motion to certify the record.

Eastman, Stichter, Smith & Bergman and M. Donald Carmin, Toledo, for appellee.

Jack M. Lenavitt, Toledo, for appellants.

HERBERT, Justice.

It is appellants' contention that under the interpretation placed upon the phrase 'physical contact' by the insurance company, the uninsured motorist provision contained in the policy is contrary to and violates the public policy of this state as indicated by the adoption of R.C. 3937.18. That statute requires insurers selling automobile liability insurance in Ohio to offer coverage for injuries sustained through the operation of motor vehicles by uninsured motorists. Appellants assert that the phrase 'physical contact,' as used in the policy, is unclear and ambiguous. They urge that a proper construction in favor of the insured, and compatible with R.C. 3937.18, would allow recovery under the 'hit-and-run' coverage of the policy, notwithstanding the absence of contact between the unidentified and the insured's vehicles.

For an interpretation of the phrase 'physical contact,' the touchstone of the inquiry should be the contract of insurance itself. In its coverage for uninsured motorists, the policy, in pertinent part, provides:

'The company will pay all sums which the insured * * * shall be legally entitled to recover as damages from the owner or operator of an uninsured highway vehicle because of bodily injury sustained by the insured * * *.'

'Uninsured highway vehicle' is defined to include a 'hit-and-run vehicle,' which is further defined as:

'* * * a highway vehicle which causes bodily injury to the insured arising out of physical contact of such vehicle with the insured or with an automobile which the insured is occupying at the time of the accident * * *.' (Emphasis added.)

When concerned solely with issues of ambiguity, the rules governing construction of contracts of insurance are well settled in this state. As appellants argue, this court has held on numberous occasions that where the meaning of language used in a contract of insurance is doubtful, uncertain, or ambiguous, the language will be construed strictly against the insurer, the party who prepared the contract. E. g., Munchick v. Fidelity & Casualty Co. (1965), 2 Ohio St. 2d 303, 209 N.E.2d 167; Yeager v. Pacific Mutual Life Ins. Co. (1956), 166 Ohio St. 71, 139 N.E.2d 48; American Policyholders Ins. Co. v. Michota (1952), 156 Ohio St. 578, 103 N.E.2d 817.

Conversely, '* * * when words used in a policy of insurance have a plain and ordinary meaning, it is neither necessary nor permissible to resort to construction unless the plain meaning would lead to an absurd result.' Olmstead v. Lumbermens Mutl. Inc. Co. (1970), 22 Ohio St.2d 212, 216, 259 N.E.2d 123, 126. See, also, Jackson v. Metropolitan Life Ins. Co. (1973), 34 Ohio St.2d 138, 296 N.E.2d 679; Jirousek v. Prudential Ins. Co. (1971), 27 Ohio St.2d 62, 271 N.E.2d 866.

We find nothing uncertain or ambiguous about the words used in this policy to define 'hit-and-run vehicle,' or to establish the requirement of 'physical contact.' Giving the wording of the policy its natural and reasonable construction, the only conclusion to be reached is that the policy does not provide coverage for injuries sustained by reason of the tortious operational conduct by drivers of unidentified vehicles, in the absence of at least a minimal contact between such a vehicle and the insured or the vehicle he is occupying. The rubric 'hit-and-run vehicle,' encompassing a 'hit,' as well as a 'run,' further buttresses the express prerequisite of a 'physical contact.' Were we to accept the construction urged by appellants, we would be disregarding the words 'physical contact' and 'hit-and-run vehicle,' and allowing recovery under the 'hit-and-run' portion of the uninsured motorist provision whenever unidentified vehicles 'proximately cause' an automobile accident to occur. Barring certain well-defined overriding principles, this should not be done where the parties have clearly and expressly provided otherwise in the policy.

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