dissenting.
In my view, the physical contact requirement of the “hit-and-run” provision violates A.R.S. § 20-259.01 requiring uninsured motorist coverage, and is therefore void. Many of the arguments supporting this view are set forth in my concurring opinion in Anderson v. State Farm Mutual Automobile Insurance Co., 133 Ariz. 464, 468-71, 652 P.2d 537, 541-44 (1982) and need not be repeated. Suffice it to say that the “significant trend” of modern cases holds that even absent specific statutory coverage of hit-and-run or miss-and-run accidents, uninsured motorist statutes contemplate coverage for such accidents. A. WIDISS, A GUIDE TO UNINSURED MOTORIST COVERAGES § 2.41, at 141-50 (Supp.1981). The physical contact requirement is in derogation of the protective purposes of uninsured motorist statutes. Id.; see also 1 A. WIDISS, UNINSURED AND UNDERINSURED MOTORIST INSURANCE § 9.9, at 350-51 (2d ed. 1985).
More than twelve states have held the physical contact requirement void as contrary to statutory mandate for uninsured motorist coverage. 1 A. WIDISS, supra § 9.7, at 346. Many more are avoiding the harsh results of applying the provision by interpreting it out of existence. Id. § 9.9, at 350-51.
Thus, I believe that our decision in Balestrieri v. Hartford Accident & Indemnity Insurance Co., 112 Ariz. 160, 540 P.2d 126 (1975) was wrong and should be overruled. Balestrieri holds that coverage for victims of hit-and-run drivers is a matter of private contract because the legislature intended to define an “uninsured motorist” as one actually uninsured rather than one whose insurance status cannot be ascertained. That principle has been rejected in other uninsured motorist cases. E.g., Porter v. Empire Fire & Marine Insurance Co., 106 Ariz. 274, 475 P.2d 258 (1970) (an insured negligent driver was considered uninsured for purposes of the uninsured motorist statute when the victim was unable to recover the minimum amount required by the statute because the limits had to be divided among several victims).
The majority argues, however, that the legislature impliedly adopted Balestrieri because it has since twice amended the uninsured motorist statute without redefining an “uninsured motorist” to include an “unknown mororist.” Recently we have declined to accept the principle that legislative silence shows approval. See Calvert v. Farmers Insurance Co. of Arizona, 144 Ariz. 291, 297, 697 P.2d 684, 690 (1985) (citing Hosogai v. Kadota, 145 Ariz. 227, 230, 700 P.2d 1327, 1330 (1985)). The legislature has been known to amend statutes without addressing this court’s interpretation. Calvert, 144 Ariz. at 297, 697 P.2d at 690.
The majority cites nothing to show that when the legislature amended A.R.S. § 20-259.01 in 1981 and 1982, it considered Balestrieri’& restrictive definition of an uninsured motorist. The general index for the House and Senate shows no bill introduced which defined “uninsured motorist” or addressed Balestrieri. See General Index: The Journal of the House of Representatives (1975-85); General Index: The Journal of the Senate (1975-85). Thus, there is no direct evidence of legislative intent.
More importantly, the majority fails to explain why the legislature would have intended so strange a loophole in its comprehensive insurance scheme. After Balestrieri was decided, the legislature enacted laws requiring compulsory liability coverage. See A.R.S. §§ 28-1170, 28-1251 to *2721260 (Supp.1985). At the time of Balestrieri, unlike today, one could register an automobile without submitting proof of insurance. A.R.S. § 28-1254 (Supp.1985). The new statutes criminalize the act of driving without liability coverage. See A.R.S. §§ 28-1251 and 28-305, notes § 18 (Supp.1985). Minimum limits of uninsured motorist coverage are now mandatory. A.R.S. § 20-259.01(A) (Supp.1985). Since Balestrieri was decided, insurers have been required to offer and provide additional uninsured motorist coverage up to the limits of liability coverage. A.R.S. § 20-259.01(B) (Supp.1985). Since Balestrieri, the legislature has provided that insurers must offer and provide underinsured motorist coverage up to the limits of the liability coverage. A.R.S. § 20-259.01(0) (Supp. 1985). The present legislative scheme demonstrates a clear policy that every automobile accident victim have available at least the prescribed minimum amount of compensation, and that those with foresight to buy more have greater amounts available. Clearly, the legislature did not wish to leave anyone completely uncovered.
The standard policy covers victims of hit- and-run accidents in which physical contact occurs with the claimant’s vehicle. Anderson covers victims of hit-and-run accidents in which there has been “indirect” contact. Thus, Balestrieri’s construction of A.R.S. § 20-259 and today’s majority opinion leave only one Arizona victim uncovered: the wretch injured by a miss-and-run driver who was agile enough to avoid even indirect contact. I can think of no reason why the legislature would have intended the miss-and-run victim to be the only injured person in Arizona with no way to pay for the ambulance that comes to his aid. The insurance scheme enacted by the legislature is disserved by such a result. This court would better serve the legislature’s objectives by holding that the exclusion for miss-and-run drivers is void as against the public policy established by A.R.S. § 20-259.01. .
Insurance companies can resolve any worry about fraudulent claims based upon “phantom” automobiles by requiring the insured to establish the existence of an actual miss-and-run driver. Standard policy forms already require the claimant to show that there was an unknown driver who was negligent. This is the preferred method of handling the phantom vehicle problem. See 1 A. WIDISS, supra, § 9.9, at 350-51; Brown v. Progressive Mutual Insurance Co., 249 So.2d 429, 430 (Fla.1971).
Instead of holding that Balestrieri has been approved by subsequent legislation, I would hold that it is an anachronism that should be overruled.