Smith v. General Casualty Insurance

FINE, J.

(dissenting). This case is governed by the clear language of § 632.32(4)(a)2.b., Stats., which requires uninsured-motorist coverage in Wisconsin when the accident for which coverage is sought is caused by an "uninsured motor vehicle." The statute defines "uninsured motor vehicle" to mean, among other things, "[a]n unidentified motor vehicle involved in a hit-and-run accident." Unlike the General Casualty policy, the statute does' not require that there be physical contact between the uninsured motor vehicle and the insured's car; it merely requires that the *419"unidentified motor vehicle" be "involved in a hit and run accident." The statute of course, controls.

Before an "unidentified motor vehicle" can be "involved in a hit-and-run accident" the unidentified motor vehicle must have both "hit" and "run." See Hayne v. Progressive Northern Ins. Co., 115 Wis. 2d 68, 74, 339 N.W.2d 588, 591 (1983) ("The clear statutory language of sec. 632.32 (4) (a) 2.b. reflects a legislative intent that the statute apply only to accidents in which there has been physical contact."); Wegner v. Heritage Mut. Ins. Co., 173 Wis. 2d 118, 127, 496 N.W.2d 140, 144 (Ct. App. 1992) ("[T]he only reasonable reading of the statute is that the unidentified vehicle must be involved with the physical contact. This reading would preserve the justification for the physical contact requirement, i.e., the prevention of fraudulent claims."). Thus, the statute requires the confluence of three things before coverage is mandated: 1) there must be an "unidentified motor vehicle"; 2) the unidentified motor vehicle's involvement in the accident must be as a result of it having "hit" one of the other motor vehicles "involved" in the accident; and 3) the unidentified motor vehicle must have "run." Viewing the facts in a light most favorable to the party opposing summary judgment, as we must, the unidentified car here satisfies all the prerequisites. Significantly, all of the cases upon which the majority relies lacked the second of the three elements; namely, in each of those cases, the unidentified motor vehicle did not "hit" any of the vehicles — those cases were "miss-and-run" situations.

If the legislature had intended that there be physical contact between the unidentified vehicle and the insured seeking coverage (as opposed to any of the vehicles caught up in the collision), it could have easily so provided — as did the drafters employed by General *420Casualty. Indeed, Hayne tells us that the legislature was aware of insurance-industry language that limited uninsured-motorist coverage for hit-and-run accidents to those situations where the unidentified motor vehicle " 'causes bodily injury to an insured arising out of physical contact of such vehicle with the insured.'" Hayne, 115 Wis. 2d at 83-84, 339 N.W.2d at 595. Thus, it is reasonable to assume that by not adopting the industry language, the legislature intended to encompass situations where, as here, the unidentified motor vehicle makes physical contact with any of the vehicles involved in a multi-vehicle accident.

In my view, the trial court should not have granted summary judgment. I would reverse and remand for trial.