dissenting.
Respectfully, I dissent.
The insurance policy’s physical contact requirement is in derogation of the coverage mandated by KRS 304.20-020. The statute mandates coverage
... 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 *637death, resulting therefrom. KRS 304.20-020(1).
The coverage defined in and required by subsection (1) provides for no exceptions, and requires no physical contact from the offending vehicle. It requires only that the claimant is “legally entitled to recover damages.”
The statute then specifies in subsection (2) three instances (and only three) wherein “uninsured motor vehicle” may be “deemed to include an insured motor vehicle” for purposes of the statute, “subject to the terms and conditions of such coverage.” These instances are: (1) where the insurer of the offending vehicle is insolvent, (2) where the offending vehicle has coverage “less than the limits described in KRS 304.89-110,” and (3) where the insurer of the offending vehicle has “denied” coverage. KRS 304.20-020(2).
The phrase “subject to the terms and conditions of such coverage” in subsection (2) explains that coverage may be limited in the three specified instances by doing so in the “terms and conditions of such coverage;” i.e., the policy must so state. Nothing in subsection (2) permits the insurance company to add “physical contact” as part of the terms and conditions of coverage. Jett v. Doe, Ky., 551 S.W.2d 221 (1977) and its progeny are plainly mistaken in construing the words “subject to the terms and conditions of such coverage” in subsection (2) of the statute as giving insurers carte blanche to impose exclusions to coverage as they deem reasonable, in derogation of the statutory coverage mandated in subsection (1).
The uninsured motorist law provides statutory coverage for the liability of an offending uninsured motorist, permitting the insurance company to include in the policy three specified exceptions. Physical contact is not one of those exceptions. If the driver of the offending truck had been identified and proved at fault, he would be liable. If he had liability insurance, his carrier would be required to cover the loss. If the offending motorist is identified but uninsured, he is personally liable. Thus the real issue here is not physical contact; it is whether an unidentified motorist should be classified as an uninsured motorist. The statute should be construed as including an unidentified motorist within the concept of an uninsured motorist because, when the offending motorist is unidentified, no recovery can be obtained from an insurance company providing coverage to the offending motorist.
In any event, in this case the policy expressly provides that “UNINSURED MOTOR VEHICLE” includes “A ‘hit-and-run’ land motor vehicle whose owner or driver remains unknown.” Of course, the policy also expressly requires physical contact, but this conflicts with the statute. Without question, under this policy coverage is provided if we would only adhere to the provisions of the Uninsured Motorist statute as written instead of permitting additional exceptions. We have stripped away the plain meaning of the statute.
Physical contact between the vehicle driven by the offending motorist and the claimant’s vehicle, per se, has nothing to do with this statute, and nothing to do with this problem.