Ward v. Allstate Ins. Co.
| Decision Date | 14 October 1974 |
| Docket Number | No. 58532,58532 |
| Citation | 514 S.W.2d 576 |
| Parties | William WARD, Appellant, v. ALLSTATE INSURANCE COMPANY, Respondent. |
| Court | Missouri Supreme Court |
Robert Frager, Kansas City, for appellant.
Morris, Foust, Moudy & Beckett, Walter F. Moudy, Russell D. Jacobson, Kansas City, for respondent.
Appellant William Ward, an 18-year-old, by next friend, sought a declaratory judgment in the Circuit Court of Jackson County to determine Allstate Insurance Company's responsibility to Ward, and others similarly situated, under Missouri's 'Uninsured Motorist Statute,' § 379.203, RSMo 1969, V.A.M.S. The Circuit Court dismissed Ward's second amended petition and the Missouri Court of Appeals, Kansas City District, affirmed. The case was transferred here by order of this Court.
On July 21, 1968, Ward was driving his mother's 1962 Pontiac in a northerly direction along Raytown Road in Kansas City, Missouri, when an unknown and unidentifiable driver, approaching in a southerly direction, crossed the median into the northbound lane directly in front of Ward, forcing him to swerve his automobile to avoid collision. Ward lost control of the vehicle, traveled across the southbound lane, and struck a utility pole, causing injury to Ward. There was no physical contact between Ward's vehicle and the unknown vehicle.
Ward was insured under his mother's policy with Allstate. This policy defines 'uninsured automobile' as follows:
'(c) (1) an automobile with respect to the ownership, maintenance or use of which there is, in at least the amounts specified by the financial responsibility law . . ., no bodily injury liability bond or insurance policy applicable at the time of the accident with respect to any person or organization legally responsible for the use of such automobile, or with respect to which there is a bodily injury liability bond or insurance policy applicable at the time of the accident but the company writing the same either has denied coverage thereunder or is or becomes insolvent; or
'(2) a hit-and-run automobile as defined; . . ..'
The policy defines 'hit-and-run automobile' as one which '. . . causes bodily injury to an insured arising out of physical contact of such automobile with the insured or with an automobile which the insured is occupying at the time of the accident, . . ..'
The parties agree that this is a case of first impression in Missouri. In Hill v. Seaboard Fire & Marine Insurance Company, 374 S.W.2d 606, 609 (Mo.App.1963), the general rule applicable here was stated as follows:
'Plaintiff has the burden of proof and it was incumbent on her to prove (1) that the other motorist in the accident was uninsured, (2) that the other motorist is legally liable to the insured, and (3) the amount of such liability.'
The preliminary question presented is whether Allstate is responsible under the terms of the policy, and in particular that portion which provides coverage in situations where the 'uninsured automobile' is a 'hit-and-run automobile.' If the 'uninsured automobile' is a 'hit-and-run automobile,' the policy of insurance relieves Ward of the burden of proving that the vehicle which caused his injuries was uninsured. In our opinion, the 'hit-and-run' provision of the policy is of no benefit to Ward because it is expressly limited to situations where bodily injuries arise 'out of physical contact of the . . . (uninsured vehicle) with the insured or with an automobile which the insured is occupying at the time of the accident . . ..' There was no such physical contact in this case.
The essential question presented is whether Allstate is responsible under the terms of the 'Uninsured Motorist Statute,' § 379.203, RSMo 1969. The pertinent provisions of § 379.203, supra, are as follows:
'No automobile liability insurance . . . shall be delivered . . . in this state . . . unless coverage is provided therein . . ., for the protection of persons insured thereunder who are legally entitled to recover damages from owners or operators of uninsured motor vehicles because of bodily injury. . . .'
It is well established in Missouri that '(E)xisting and valid statutory provisions enter into and form a part of all contracts of insurance to which they are pertinent and applicable as fully as if such provisions were written into them.' 43 Am.Jur.2d, Insurance, § 289, p. 350. Dyche v. Bostian, 361 Mo. 122, 129, 233 S.W.2d 721, 724 (banc 1950); Homan v. Employers Reinsurance Corp., 345 Mo. 650, 136 S.W.2d 289 (Mo.1939).
Cases from other jurisdictions construing uninsured motorist statutes similar to the Missouri statute generally fall into three classes. Those representing a restrictive interpretation are: Amidzich v. Charter Oak Fire Ins. Co., 44...
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