Masler v. State Farm Mutual Automobile Insurance Co.

STUMBO, Justice,

dissenting.

As noted in the majority opinion, we are here presented with an extremely narrow issue, whether an object thrown from or propelled by an uninsured vehicle which strikes the insured or the insured’s vehicle causing bodily injury, is sufficient contact so as to require the insurer to provide coverage.

In State Farm Mutual Automobile Insurance Company v. Christian, Ky., 555 S.W.2d 571, 572 (1977), this Court made the following observation:

We have noted on several past occasions that in enacting KRS 304.20-020, the General Assembly did not presume to write an uninsured motorist policy, but merely gave a general outline of the coverage required, the legislature recognizing that the limits and terms of the statute’s general outline of required coverage would of necessity be specifically defined by reasonable “terms and conditions” in the various insurance contracts. (Citations omitted.) Reasonable exclusions fall within the “terms and conditions” to which the statute’s application is subject.

*638In Preferred Risk Mutual Insurance Company v. Oliver, Ky., 551 S.W.2d 574, 577 (1977), we stated that:

[I]t must be noted that the purpose of mandatory uninsured motorist coverage is to provide those who purchase liability insurance with the same protection that they would have had if the uninsured motorist had carried the minimum limits of liability coverage.

Finally, we come to the cases in which hit- and-run situations are specifically involved. The first is Jett v. Doe, Ky., 551 S.W.2d 221 (1977), in which the insured was injured as a result of her car leaving the highway and crashing into a number of trees after the insured lost control of the vehicle while swerving to avoid collision with a recklessly driven, unknown vehicle. There was no physical contact between the insured’s vehicle and the unknown defendant, which was specifically required by her uninsured motorist protection. Therein, Jett argued that the physical contact requirement was an unreasonable restriction and should be inapplicable where the accident was witnessed by an impartial observer attesting that it resulted from the actions of the unidentified vehicle. Id. at 222. This Court held that based upon the “subject to the terms and conditions of such coverage” language contained in subsection two (2) of KRS 304.20-020, the insurer had the right to require whatever conditions precedent to the insurance coverage it deemed appropriate.

In a similar case during that same year, we held that there was no coverage where the insured’s vehicle was struck by another vehicle which had been forced from its lane of travel by an unknown vehicle. State Farm Mutual Automobile Insurance Company v. Mitchell, Ky., 553 S.W.2d 691 (1977). Relying upon Jett, supra, this Court once again concluded that a physical contact requirement was not in conflict with the statute. Therein the Court noted that the majority rule was:

[Wjhere an unknown hit-and-run motorist strikes a third vehicle, which in turn strikes the insured vehicle, there is “actual physical contact” within the meaning of the contractual requirements contained in an uninsured motorist policy. State Farm Mutual Automobile Insurance Company v. Carlson, 130 Ga.App. 27, 202 S.E.2d 213 (1973); Louthian v. State Farm Mutual Insurance Company, C.A.4th Cir., 493 F.2d 240 (1973).

Mitchell, supra, at 692. The Court then concluded that where there was no actual physical contact between the hit-and-run vehicle, itself, and either the insured vehicle or the intermediate vehicle, the “ ‘physical contact’ requirement of the hit-and-run clause of the uninsured motorist policy under consideration ... has not been met.” Id. at 292 (emphasis added).

Thus, this Court appeared to recognize that there is a possibility of coverage where the unknown hit-and-run vehicle strikes another vehicle, which in turn strikes the insured vehicle.

The most recent in this line of cases is Belcher v. Travelers Indemnity Company, Ky., 740 S.W.2d 952 (1987). Therein the insured was in the middle of a chain-reaction accident. The unidentified vehicle involved was at the front of the chain and none of the other vehicles involved ever came in contact with that car. Once again, the insurance contract required physical contact by the uninsured motor vehicle with the insured or the insured’s vehicle. Id. at 953. The Court discussed the policy reasons behind a requirement by an insurance company for physical contact with an unidentified car noting that same protects the insurer from fraud. “Without such a requirement, insureds could damage their own car and recover, claiming fault with some third party.” Id. at 953. Thus, the insurer protects itself from the phantom car scenario.

A factor that each of these cases has in common is that the unidentified vehicle has had physical contact with nothing that came in contact with the insured or his vehicle, thereby causing the injuries for which coverage is sought. The case at bar is more analogous to the hypothetical situation addressed in State Farm Mutual Automobile Insurance Company v. Mitchell, supra, in which a third vehicle is struck by an unknown or unidentified vehicle. Thus, the issue presented in this case is whether an *639object which may have been either part of the load of the unknown vehicle or thrown from the wheels of the unknown vehicle striking the insured vehicle is sufficient contact to require coverage. I believe that it is.

In construing provisions of uninsured motorist coverage, this Court has repeatedly noted that uninsured motorist coverage is personal to the insured and that we must look at the insured’s reasonable expectation with regard to the insurance coverage which has been bought and paid for. See, e.g., Meridian Mutual Insurance Company v. Siddons, Ky., 451 S.W.2d 831 (1970); Ohio Casualty Insurance Company v. Stanfield, Ky., 581 S.W.2d 555 (1979); Chaffin v. Kentucky Farm Bureau Insurance Companies, Ky., 789 S.W.2d 754 (1990).

In this case, appellant has purchased insurance to pay for “bodily injury ... caused by accident arising out of the operation, maintenance or use of an uninsured motor vehicle.” The definition of an uninsured motor vehicle in appellant’s policy included a hit-and-run land motor vehicle whose owner or driver remains unknown and which strikes the vehicle the insured is occupying thereby causing bodily injury. It is appellant’s theory of the case that the operation of the uninsured motor vehicle resulted in the striking that caused his injuries. Appellee would have us make a distinction between a direct-contact strike, vehicle to vehicle, and the striking of another object by the uninsured vehicle, which object then strikes the insured or his vehicle causing injury. I do not believe that such a distinction need be made, particularly in the fact situation before us. In plain language, I do not have a phantom vehicle.

Here, the parties have stipulated that as the unidentified truck passed, a rock entered the windshield of appellant’s vehicle striking him and causing him injury. The rock has been recovered, and is available for admission into evidence in the case. Thus, there is some physical evidence that the facts will support appellant’s theory of the case. Whether a rock of the size and nature described in the briefs could have dislodged from a passing truck, or been thrown by the wheels of a truck, and whether the truck driver or owner was negligent thereby are questions of fact for a jury to determine.

I would, therefore, reverse and remand the decision of the Court of Appeals.

LAMBERT, J., joins this dissenting opinion.