dissenting.
Respectfully, I dissent.
The term “uninsured motorist” is undefined in the statute. It should be given a broad interpretation to effect obvious legislative policy. An offending unidentified vehicle, verified by disinterested witnesses and physical circumstances, should be presumed uninsured unless the contrary is shown.
In Widiss, Uninsured and Underin-sured Motorist Insurance, § 9.6, “The physical contact requirement: Limitations on the effect of the requirement,” the author states:
“Many judges and writers have concluded that the physical contact requirement should he further relaxed or eliminated when evidence from completely disinterested witnesses is available to document the cause of the accident.” (Emphasis added.)
Supporting cases and authorities are footnoted therein. Seventeen states where the issue has come up, cited in the Mov-ant’s Brief, extend statutory coverage in the present situation. So should we.
Since uninsured motorist coverage was first enacted in 1970, the legislature has further demonstrated a policy of providing accident victims statutory coverage by the Motor Vehicle Reparations Act (MVRA), which adds no-fault and underinsured motorist coverage. This should give us pause to reevaluate our thinking in Jett v. Doe, Ky., 551 S.W.2d 221 (1977), which was never really sound in the first place.
The underlying reasoning upholding the physical contact requirement expressed in Jett was that an insurance company had a right to protect against fraud or collusion. The reason is simply meaningless in cases where there is independent corroboration to prove that an unknown motorist caused the accident. To carry out the statutory purpose, the undefined statutory term, “uninsured motorist,” should be interpreted to include an unknown motorist in these circumstances. The reasoning in Jett is indefensible and the case should be overruled.
Further, in the present case the policy exclusion is significantly ambiguous, being for “hit and run vehicles,” not specifically for “unidentified vehicles.” The offending vehicle here was unidentified, but not a “hit and run” vehicle. The “reasonable expectations” of the insured from the policy language would be that an “unidentified” vehicle would be covered even if a “hit and run” vehicle was not. Cf. Cincinnati Ins. Co. v. Vance, Ky., 730 S.W.2d 521 (1987).
LAMBERT, J., joins in this dissent.