No. 84-510
IN THE SUPREME COURT OF THE STATE OF MONTANA
1985
JOHN McGLYNN and GORDON TRACY,
Plaintiffs,
SAFECO INSURANCE COMPANIES OF
AP.ERICA,
Defendants.
ORIGINAL PROCEEDING:
COUNSEL OF RECORD:
For Plaintiffs:
Johnson, Skakles & Kebe; David Wing argued, Anaconda,
Montana
Knight, Dahood, McLean & Everett; Edward Beaudette
argued, Anaconda, Montana
Keller, Reynolds, Drake, Sternhagen & Johnson; P.
Keith Keller, Helena, B4ontana
For Defendants:
Williams Law Firm; Richard Ranney argued, Missoula,
Montana
Submitted: May 16, 1385
Gecided: June 19, 1985
Filed:
-
Clerk
Mr. Justice IfiTilliarn E. Hunt, Sr., delivered the Opinion of
the Court.
The United States District Court for the District of
Montana, Butte Division, W. D. Murray, J., certified the
following question to this Court for resolution:
"May an insurance company issuing a policy of
automobile liability insurance in the State of
Montana require physical contact of a vehicle
driven by an unknown driver with that of the
insured, as a precondition of coverage under the
uninsured motorist provision of the policy required
by MCA, section 33-23-201?"
This is a case of first impression in Montana. After
due deliberation, we answer the question in the negative.
On October 19, 1982, John McGlynn was riding as a
passenger in a vehicle driven by Gordon Tracy. The vehicle
was heading north on Interstate Highway 15, approximately 17
miles north of Butte, Montana. As their vehicle approached a
bridge, another vehicle approached from the opposite
direction. Just when their vehicle was a short distance from
the bridge, the other vehicle crossed over the centerline
into their lane of travel. In order to avoid a collision,
Tracy swerved his vehicle, and. in so doing, squarely struck
the bridge abutment. As a result, McGlynn received serious
injury, including loss of hearing, and inability to pursue
the employment in which he had engaged prior to the accident.
It is undisputed there was no physical contact between
the two vehicles. The other vehicle stopped. briefly after
the accident, but then continued on, and the identity of the
driver or the vehicle remains unknown. Tracy carried
insurance through Safeco Insurance Companies of America.
Following the above-described. events, McGlynn filed a
negligence action against Tracy, and an action against
Safeco, which listed Tracy as its insured on a policy of
automobile liability insurance. The claim aga-inst Safeco was
based on the tortious conduct of the driver who crossed the
centerline and McGlynn sought benefits under the policy's
uninsured motorist provisions.
Safeco answered and filed an affirmative defense. Tracy
filed a cross-claim against Safeco for uninsured motorist
benefits. On November 30, 1983, the case was removed to
Federal District Court in Butte on the ground of diversity of
citizenship. Safeco then moved to dismiss by summary
judgment, on the basis that the policy contains a clause
which defines an uninsured motorist as a hit-and-run
automobile, and that the accident must arise "out of physical
contact of such automobile with the insured or with an
automobile which the insured is occupying." Certification to
this Court followed.
Joined as plaintiffs in the cross-claim against Safeco,
McGlynn and Tracy contend that the physical contact
requirement of the uninsured motorist provisions asserted by
Safeco is repugnant to our uninsured motorist statute, S
33-23-201, MCA, and to public policy, and that that
requirement is therefore null and void.
They further contend that proof of absence of liability
insurance of the unidentified motorist is not a condition
precedent to the recovery of benefits. A separate discussion
of this subissue is unnecessary because of the language
contained in the policy itself.
Safeco takes the position that the statute protects only
those insureds who are "legally entitled to recover" from
uninsured motor vehicle operators, and that the statute
should not be broadened to include unknown and unidentified
motor vehicle operators as well.
Further, it asserts that if the legislature had meant to
extend coverage to situations where there was no physical
contact it could have so provided, and that it is not the
role of the Supreme Court to create new law.
Our uninsured motorist statute, 5 33-23-201, MCA,
contains no prerequisite of physical contact, and makes no
reference to hit-and-run drivers:
"Motor vehicle liabilit olicies to include
uninsured motorist covers$--%ejection insured..
(1 No automobile liability or motor vehicle
I-iability policy insuring against loss resulting
from liability imposed by law for bodily injury or
death suffered by any person arising out of the
ownership, maintenance, or use of a motor vehicle
shall be delivered. or issued for delivery in this
state, with respect to any motor vehicle registered
or principally garaged in this state, unless
coverage is provided therein or supplemental
thereto, in limits for bodily injury or death set
forth in 61-6-103, under provisions filed with and
approved by the commissioner, 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,
sickness, or disease, including death, resulting
therefrom.
"(2) The named insured shall have the right to
reject such coverage. Unless the named insured
requests such coverage in writing, such coverage
need not be provided in or supplemental to a
renewa.1 pol.icy where the named insured had rejected
the coverage in connection with the policy
previousl-y issued to him by the same insurer."
Safeco contends its policy is in conformity with
Montana's uninsured motorist statute, and that it extends
coverage in words similar to the statute:
"To pay all sums which the insured or his legal
representative shall be legally entitled to recover
- damages - - owner or operator of an
as from the
uninsured motor vehicle because of bodily injury
... " Coverage G, at 4 of policy. (Emphasis
added. )
The uninsured motorist definition in the Safeco policy
provides :
"'uninsured motor vehicle' includes a trailer of
any type and means:
"(a) an automobile or trailer with respect to the
ownership, maintenance or use of which there is, in
at least the amounts specified by the financial
responsibility law of the state in which the
insured automobile is principally garaged, no
bodily injury liability bond or insura-nce 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 denies
coverage thereund.er or is or becomes insolvent; or
"(b) a hit-and-run automobile;
"'hit-and-run automobile' means an automobile which
causes bodily injury to an insured arising out of
physical contact - - automobile - -
of such with the
insured - - -an automobile which - insured is
or with the
occupying at the time of the accident, provided:
(1) there cannot be ascertained the identity of
either the operator or the owner of such 'hit-and-
run automobile ' ; ( 2 ) the insured or someone on his
behalf shall have reported the accident within 24
hours to a police, peace or judicial officer or to
the commissioner of motor vehicles, and shall have
filed with SAFECO within 30 days thereafter a
statement under oath that the insured or his legal
representative has a cause or causes of action
arising out of such accident for damages against a
person or persons whose identity is
unascertainable, and setting forth the facts in
support thereof; and (3) at SAFECO's request, the
insured or his legal representative makes available
for inspection the automobile which the insured was
occupying at the time of the accident." (Emphasis
added. )
There is a variety of positions in jurisdictions around
the country concerning whether coverage should or should not
attach. The most recent opinion collecting and analyzing
these positions derives from our sister state of Idaho. In
Hammon v. Farmers Insurance Group (Idaho App. 19841, 692 p.2d
1202, that court ruled that the policy requirement of
physical contact was void as contrary to statute. We note
Idaho's uninsured motorist statute contains language
strikingly similar to ours, and in pertinent part, verbatim
to ours:
. . .
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, sickness or
disease, including death, resulting therefrom
. . ." Hammon, supra, 692 P.2d at 1203.
We believe that reading the statute as extending
coverage is a very salutary approach, for three reasons.
First, we must read 5 33-23-201, MCA, in conjunction with 5
61-6-301, MCA. The latter statute provides mandatory
liability protection:
"Required motor vehicle insurance. (1) Every
owner of a motor vehicle which is resistered and a
operated in Montana by the owner or with his
permission shall continuously provide insurance
against loss resulting from liability imposed by
law for bodily injury or death or damage to
property suffered by any person caused by
maintenance or use of a motor vehicle . . ."
Since the purpose of our uninsured motorist statute is to
afford the same protection to a person injured by an
uninsured motorist as he would have had if the negligent
motorist had carried liability insurance, it would defeat the
purpose of the statute to allow insurance policies to require
physical impact before coverage is extended to the insured.
Second, there has been no flood of fraudulent claims
with so-called "phantom vehicles. I' Certainly, invalid
allegations of hit-and-run vehicles are a concern. The point
was well-covered in Clark v. Regent Ins. Co. (S.D. 1978), 270
"The contention that the physical contact
requirement prevents fraudulent claims appears to
be of dubious merit. We have not found any signs
of a flood of 'phantom vehicle' claims in the
states rejecting the requirement, nor have the
legislatures of those states found it necessary to
enact a physical contact requirement to their
uninsured motorist statutes. We perceive no sound
reason to deprive an injured insured of recompense
for a valid claim to prevent the 'flood of
fraud.ulent claims' which has not materialized in
other states."
The burden of proof is upon the claimant to show the accident
was caused by an unidentified. driver, but recovery should not
be denied simply because there was no physical contact with
the offending car.
That brings us to the third reason coverage should
attach--the distinction between "hit-and-run" and
"cause-and-run." Again, the Clark opinion provides insight:
"The fallacy in interpreting the phrase from the
literal meaning of the word 'hit' lies in the fact
that it ignores the commonly accepted meaning of
the entire phrase. 'In a majority of
jurisdictions, statutes have been enacted imposing
a duty upon an individual operating or in control
of a motor vehicle involved in an accident causing
personal injury or property damage, to stop, give
certain information, and to render aid to those who
have been injured.' ...
"The term 'hit-and-run' is a baseball colloquialism
which was used to describe violations of the motor
vehicle code requirement that a driver involved in
an accident must stop, render aid and leave his
identification as required by SDCL 32-34-3 to
32-34-9. Although the term 'hit-and-run' is not
used in the body of those statutes, the compilers
have consistently used it in the captions, and this
court has referred to them as 'hit-and-run'
statutes (see State v. Minkel, S.D., 230 N.W.2d 233
(1975)) even thouTh there is no statutory
requirement of a physical contact, only tha.t the
automobile be 'involved in an accident.' It
appea.rs that it was the legislature's intention in
using the term 'hit-and-run' in SDCL 58-11-9 to
refer to any motorists involved in an accident who
failed to comply with SDCL 32-34-3 through 32-34-9,
without a requirement of physical contact." 270
N.W.2d at 31.
We agree. In Sullivan v. Doe (1972), 159 Mont. 50, 60, 495
P.2d 193, 198, we ruled:
"The basic purpose of this statute is obvious--to
provide protection for the automobile insurance
policyholder a.gainst the risk of inadequate
compensation for injuries or death caused &- the
negligence of financially irresponsible motorists."
(Emphasis added.)
Concededly, the issue giving rise to that statement in
Sullivan was whether workers' compensation benefits could be
offset against uninsured motorist coverage, - whether
not
"hit-and-run" could be or should be synonymous with
"cause-and-run." It should be noted also that Sullivan did
involve a head-on collision, but nothing in the opinion
suggested recovery turned on a physical impact. At the same
time, lack of statutory mention of "hit-and-run" or "physical
contact" is consistent with a result finding liability caused
the negligence of a financially irresponsible motorist.
In the present case, McGlynn was occupying the vehicle
Tracy was driving. Tracy swerved in an attempt to extricate
himself from the collision that was imminent. His
alternatives were limited: either maintain his course into a
head-on collision, or swerve in an attempt to avoid such a
collision. One case discussed those "alternatives." In Webb
v. United States Automobile Ass'n. (Pa. Super. 1974), 323
A.2d 737, 743, it was noted:
"If the legislature intended to 'provide protection
against innocent victims of irresponsible drivers,'
(Citations omitted) it could not also intend. that
the motorist faced with the decision whether to
collide with another vehicle or to av0i.d it should
choose to collide or else lose his protection."
The problem was also the subject of a state bar journal
article. In 55 I11.Bar J. 143, 147 (1966):
"An alert, athletic pedestrian who barely manages
to avoid contact with such a car by leaping through
a plate glass window receives the unkindest cuts of
all for his efforts, but cannot qualify. Snubbed,
too, is the driver who miraculously manages to
steer his car off the highway and thus avoid a
col-lisionwith an oncoming vehicle traveling in the
wrong lane, but in so doing effects a rather abrupt
stop against an unyielding bridge abutment."
That is exactly Tracy's plight. His injuries were caused &
an unknown or uninsured motorist.
From a policy standpoint, construction of statutes is a
role embraced uniquely by the court system. The Supreme
Court of Kansas recently reviewed a wealth of ca.ses which
construed their state's uninsured motorist statute, and
concluded that the purpose of the statute, and the clear
legislative intent was to expand insurance protection to the
public who use the streets and highways. Simpson v. Farmers
Ins. Co., Inc. (Kan. 1979), 592 P.2d 445, 450.
To allow Safeco to interpret our statute as to deny
coverage would seem to limit or restrict coverage rather than
to expand it. The Hammon case, supra, addressed this point
as well. There, the court noted that even though the State
Director of Insurance must approve all policies, and often
approves policies containing physical contact requirements,
such posture does not render the Director's judgment final as
to the validity of coverage, especially when that coverage is
legislatively mandated.. 692 P.2d at 1206.
For the above reasons, we hold that the physical contact
requirement of the policy of insurance Safeco provided to
Tracy, is repugnant to Montana's uninsured motorist statute.
Our construction of the statute neither expands nor broadens
the scope of uninsured motorist insurance coverage in
Montana; it mere1.y clarifies the coverage to which the
legislature has deemed cl-aimants such as Tracy are legally
entitled. It is enough for a claimant to show his injuries
were caused & an uninsured or unidentified motorist, in
order to come within the protection of 5 33-23-201, MCA.
/
We Concur:
/
/ Justices