Masler v. State Farm Mutual Automobile Insurance Co.

REYNOLDS, Justice.

As this case is premised upon the uninsured motorist statute, KRS 304.20-020, which insurance is fault-based coverage, the sole issue before the Court becomes whether or not the physical contact as described in the agreed statement of facts considered by both the trial court and the Court of Appeals is sufficient to bring an occurrence within the uninsured motorist coverage of appellee’s insurance policy.

A narrow issue exists because of the following stipulation of facts:

1. Plaintiff, John G. Masler, is the named insured on a policy of automobile liability insurance sold by Defendant, State Farm Mutual Automobile Ins. Co. (hereinafter “State Farm”).
2. On or about April 22, 1987, Plaintiff was driving his automobile northbound on National Turnpike when an unidentified truck with dual tandem wheels approached traveling southbound.
3. As the unidentified truck passed, a rock entered the windshield of Plaintiff’s vehicle striking Plaintiff and causing him injury.
4. The truck did not stop and remains unidentified.
5. There was no physical contact between the truck, itself, and Plaintiffs vehicle.

The applicable portion of the uninsured motorist statute states:

304.20-020. Uninsured vehicle coverage, insolvency of insurer. — (1) No automobile liability or motor vehicle liability policy of insurance insuring against loss resulting from liability imposed by law for bodily injury or death suffered by any person arising out of the ownership, maintenance *635or 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 KRS 304.39-110 under provisions 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; provided that the named insured shall have the right to reject in writing such coverage; and provided further that, unless the named insured requests such coverage in writing, such coverage need not be provided in or supplemental to a renewal policy where the named insured had rejected the coverage in connection with a policy previously issued to him by the same insurer.

The insurance policy relating to uninsured motorist coverage states, in pertinent part, as follows:

We will pay damages for bodily injury an insured is legally entitled to collect from the owner or driver of an uninsured motor vehicle. The bodily injury must be caused by accident arising out of the operation, maintenance or use of an uninsured motor vehicle.
UNINSURED MOTOR VEHICLE— means:
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2. a “hit-and-run” land motor vehicle whose owner or driver remains unknown and which strikes:
a. the insured or
b. the vehicle the insured is occupying and causes bodily injury to the insured.

This is a facts-stipulated case for which there is no exacting authority to change the Court’s prior holdings and to circumvent the legislature’s policy in regard to the uninsured motorist statute, KRS 304.20-020. As the Minority view will acknowledge, this is a case in which the issue is a narrow one. The resultant stipulation of fact says it all: “There was no physical contact between the truck, itself, and the plaintiffs vehicle.”

Uninsured motorist insurance is a fault-based coverage obligating insurers to provide indemnification for injuries caused either by uninsured or unidentified motorists. This type of insurance coverage is neither an all-risk insurance designed to provide coverage for all injuries incurred, nor is it a no-fault motor vehicle insurance that provides coverage without regard to whether a plaintiff is legally entitled to recover damages from an uninsured or unidentified motorist. See Widiss, Uninsured and Underinsured Motorist Insurance, Section 9.2, page 443 (1992).

The accepted and recognized rationale for the “striking” requirement of a policy when the identity of a hit and run motorist is unknown is to foreclose fraudulent and collusive claims. Jett v. Doe, Ky., 551 S.W.2d 221 (1977), recognizes the purpose of the standard form provision which is contained in State Farm’s policy of insurance. The requirement means actual, direct, physical contact between the hit and run vehicle, itself, and the insured’s vehicle. See State Farm Mutual Automobile Insurance Co. v. Mitchell, Ky., 553 S.W.2d 691 (1977). This Court has chosen not to expand the actual, direct, physical contact requirement to indirect physical contact.

Other forums have chosen to extend coverage disputes ranging from the classic “no contact” situations to those where drivers speak of taking evasive action to avoid being struck by thrown or propelled objects. Such other cases have turned either upon legislative provisions statutorily mandating coverage or the applicable provisions of an insurance policy’s coverage terms describing the scope of protection.

In any event, it is clear, whether we agree or not, that the State Farm policy clearly and unambiguously provides that a hit and run vehicle must strike the insured or the vehicle occupied by the insured in order for uninsured motorist coverage to arise.

The terms of insurance coverage should not be extended beyond any clear or *636unambiguous limit. The state enactment of uninsured motorist coverage provides a general outline of the coverage required and permits the various insurance companies to specifically define the limit and coverage terms. Even now, no one claims the conditions or terms of the contract to be unreasonable. See State Farm Mutual Automobile Insurance Company v. Christian, Ky., 555 S.W.2d 571 (1977). The “hit and run” insurance clause is not in conflict with the uninsured motorist coverage legislatively mandated in KRS 304.20-020. The wording in Kentucky’s statute is recognized to be different from that in other jurisdictions and in this state insurers can validly restrict, definition-ally, the term “uninsured motorist.” Jett, supra.

The treatment of the “physical contact” policy provision has continued uninterruptedly. Belcher v. Travelers Indemnity Co., Ky., 740 S.W.2d 952 (1987). It is in accord with public policy rather than against it.

Whatever the rationale employed in analyzing the objects propelled by an unidentified vehicle cases, it is clear that they do not involve the type of physical contact intended by insurers as a coverage requirement for uninsured motorist insurance. See Widiss, supra, p. 471. Questions of whether a plaintiff is legally entitled to coverage are answerable within the insurance policy; i.e., the insurance industry. The conception for what is the appropriate protective scope for risk is in the coverage terms or for the legislature to address. The terms of an insurance policy are held to be enforceable as written absent a statute to the contrary. Osborne v. Unigard Indemnity Co., Ky.App., 719 S.W.2d 737 (1986).

As neither the doctrine of reasonable expectation nor the doctrine of ambiguity arise under the stipulated facts and circumstances of this case, the remarks of Chief Judge Cardozo are applicable — “Few words are so plain that the context or the occasion is without capacity to enlarge or narrow their extension. The thought behind the phrase proclaims itself misread when the outcome of the reading is injustice or absurdity.” The policy provision developed in light of the statute is neither unjust or absurd and, in this case, simply means that there is no coverage. See Surace v. Danna, 248 N.Y. 18, 161 N.E. 315 (1928).

While the ends of justice in individual cases may be served by facile interpretations of the “physical contact” condition in the coverage terms of the policy, the public’s interest in regard to these cases would be nobly served if the insurance industry would redraft coverage terms to provide more comprehensive coverage for such accidents. Advocating this context, the problem typically is not a question of requiring corroboration from witnesses, rather it requires a broader conception for what is the appropriate scope of protection for the risks that are covered by this insurance.

Legislation has, in several states, mandated that coverage be provided for hit and run accidents that do not involve physical contact when the claimant’s allegations about the cause of the events are corroborated. See Widiss, supra, p. 471; see also A.S. Klein, Annotation, Uninsured Motorist Indorsement: Validity And Construction Of Requirement That There Be “Physical Contact” With Unidentified Or Hit-And-Run Vehicle, 25 A.L.R.3d 1299 (1969).

The opinion of the Court of Appeals is affirmed.

STEPHENS, C.J., and SPAIN and WINTERSHEIMER, JJ., concur. LEIBSON, J., dissents by separate opinion. STUMBO, J., dissents by separate opinion in which LAMBERT, J., joins.