DeHart v. Wisconsin Mutual Insurance

SHIRLEY S. ABRAHAMSON, C.J.

¶ 41. (dissenting). The court is asked whether the policyholder, DeHart, is entitled to uninsured motorist insurance coverage, a question that requires statutory interpretation. The majority opinion fails to engage in proper statutory interpretation and fails to provide DeHart with the insurance protection to which she is statutorily entitled. For the reasons set forth, I dissent.

¶ 42. I first comment on the holdings of the majority opinion and then the text of Wis. Stat. § 632.32(4)(a). After that I discuss why the prior case law does not govern the instant case. Finally, I discuss the policy reasons supporting my interpretation of the statute.

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¶ 43. The majority opinion's holding is stated in two different ways: In ¶¶ 2, 32, and 40 the majority opinion requires that there be a "hit to" the policyholder's vehicle. In contrast, the implication of note 12 in ¶ 32 is that if the policyholder's vehicle makes contact with another vehicle or part thereof, the policyholder may be covered under the uninsured motorist policy.

¶ 44. Suppose, for example, if after swerving to miss the unidentified motor vehicle that had struck a different vehicle's side view mirror, DeHart's vehicle had then struck another vehicle. There would be a "hit by" the unidentified motor vehicle and a "hit by" DeHart's vehicle, but no "hit to" DeHart's vehicle.

¶ 45. A hit to the policyholder's vehicle is different from a hit by the policyholder's vehicle. A hit to the policyholder's vehicle is different from the policyholder's vehicle making contact with another vehicle. The majority opinion does not address this significant distinction.

¶ 46. Furthermore, although Smith v. General Casualty Insurance Co., 2000 WI 127, 239 Wis. 2d 646, 619 N.W.2d 882, upon which the majority opinion relies, involved a "hit to" the policyholder's vehicle, the text of Smith also speaks of an intermediate vehicle having "contact with" the policyholder's vehicle. Majority op., ¶ 34.

¶ 47. The minimum expectation for a decision of this court is that the holding be clear. Unfortunately, the decision of the court in the instant case does not meet that expectation.

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¶ 48. I turn to the text of the statute. The text of Wis. Stat. § 632.32(4)(a) does not require either a hit to the policyholder's vehicle or contact between the *591policyholder's vehicle and another vehicle. Wisconsin Stat. § 632.32(4)(a) mandates insurance coverage to a policyholder entitled to recover damages from an owner or operator of an uninsured motor vehicle. Subdivision (4)(a)2.b. includes in the definition of an uninsured motor vehicle "[a]n unidentified motor vehicle involved in a hit-and-run accident" (emphasis added). Consequently, the statute mandates insurance coverage to a policyholder entitled to recover damages from the operator of an unidentified motor vehicle involved in a hit-and-run accident.

¶ 49. Wisconsin Stat. § 632.32(4)(a)2. reads as follows:

(4) Required Uninsured Motorist and Medical Payments Coverage. Every policy of insurance... that insures with respect to any motor vehicle ... against loss resulting from liability imposed by law for bodily injury or death suffered by any person arising out of the ... use of a motor vehicle shall contain therein ... :
(a) Uninsured motorist.
1. For the protection of persons injured 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, in limits of at least $25,000 per person and $50,000 per accident.
2. In this paragraph "uninsured motor vehicle" also includes:
• a. An insured motor vehicle if before or after the accident the liability insurer of the motor vehicle is declared insolvent by a court of competent jurisdiction.
b. An unidentified motor vehicle involved in a hit-and-run accident.

*592¶ 50. The term "hit-and-run" in Wis. Stat. § 632.32(4)(a)2.b. acts as a qualifying phrase requiring the unidentified vehicle to come into physical contact with another vehicle. Nothing in subdivision (4)(a)2.b. of the statute suggests that the unidentified motor vehicle's contact has to be with the policyholder's vehicle. Indeed, nothing in subdivision (4)(a)2.b. requires a "hit" to the policyholder's vehicle at all, by any vehicle or part thereof, or contact between the policyholder's vehicle and another vehicle. Thus, according to the statute, the policyholder need not have a hit-and-run accident with the unidentified motor vehicle, or be hit by another vehicle or part thereof, or have contact with another vehicle. To be protected under Wis. Stat. § 632.32(4)(a), the policyholder need only be legally entitled to recover damages from the operator of an unidentified motor vehicle involved in a hit-and-run accident. Should the unidentified motor vehicle ever be identified, DeHart would be legally entitled to recover damages from the operator of this vehicle if she proved the facts she now asserts.

¶ 51. If the legislature wanted to require the unidentified vehicle to hit the policyholder's vehicle, it could have so stated. The legislature could have used language like that found in DeHart's insurance policy, which defines an uninsured motor vehicle as including "[a] hit-and-run vehicle whose operator or owner is unknown and which strikes: (i) you or a relative, (ii) a vehicle which you or a relative are occupying, or (iii) your insured car." Wisconsin Mutual policy, Part C, section (2)(c) (emphasis added).1 Although the legisla*593ture required a hit-and-run accident, it did not require a direct hit or strike to the policyholder or the policyholder's vehicle by the unidentified vehicle, another vehicle, or any part thereof, or contact between the policyholder's vehicle and any other vehicle.

¶ 52. DeHart alleges that her vehicle was forced off the road by an unidentified motor vehicle that had just struck another vehicle and was fleeing the accident scene.2 DeHart asserts she suffered damages because of this unidentified motor vehicle that was involved in a hit-and-run accident.

¶ 53. Plain and simple, if the facts as alleged are true, DeHart suffered damages caused by the operator of the unidentified motor vehicle involved in a hit-and-run accident; the statute entitles her to recovery under uninsured motorist coverage.

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¶ 54. The majority opinion narrowly focuses on prior case law interpreting the statutory words "hit- and-run accident." Consequently, the majority opinion *594disregards the key statutory words, namely "involved in." The majority opinion loses sight of the fact that the policyholder suffered damages caused by "an unidentified motor vehicle involved in a hit-and-run accident."

¶ 55. Our prior cases focused on whether a hit- and-run accident had occurred.3 This case is different. Unlike our prior hit-and-run cases, without question there was a hit-and-run accident in the present case. The hit-and-run accident was between the unidentified motor vehicle and the third-party vehicle whose side view mirror was damaged. Majority op., ¶ 13 n.6, ¶ 32.4

¶ 56. Similarly, the instant case does not fit into our prior "miss-and-run" cases. In those cases there was no "hit" by the unidentified motor vehicle (or any part thereof) with any vehicle.5 In the present case, the unidentified motor vehicle hit a third-party vehicle whose side view mirror was damaged.

¶ 57. The majority opinion can be described as a miss-and-run decision, missing the legal issue pre*595sented by the facts of this case and running with a different legal issue. The majority opinion refuses to give meaning to the statutory language, in effect rendering the words "involved in" superfluous. I disagree with this approach.

¶ 58. This court recognized the importance of the words "involved in" in Smith v. General Casualty Insurance Co., 2000 WI 127, 239 Wis. 2d 646, 619 N.W.2d 882. The court explained that "[t]he use of the word 'involved' does not strike us as a word that should be narrowly applied only to a hit-and-run accident involving a direct hit to the insured vehicle. Here, the unidentified vehicle was clearly 'involved': it precipitated the accident through contact with the intermediate vehicle." Smith, 239 Wis. 2d 646, ¶ 12. The Smith court clearly recognized that the statutory words "involved in" require an expansive interpretation. Smith equated the words "an unidentified motor vehicle is involved in a hit-and-run accident" with the words "an unidentified motor vehicle precipitated the accident through contact with the intermediate vehicle."

¶ 59. The Smith court concluded that the policyholder had been hit indirectly by the unidentified motor vehicle, and that it did not need to go any further in its analysis of the words "involved in." Smith is informative in providing guidance about the words "involved in" but does not provide an answer to the present case because the facts are dissimilar. The present case forces the court to address the issue that Smith left open.6

*596¶ 60. If the majority opinion were to examine the entire statutory text and not just the hit-and-run language, the majority opinion would conclude that the statutory language is clear: Uninsured motorist coverage is mandated when damage to the policyholder results from an unidentified vehicle "involved in" a hit-and-run accident. The majority opinion would further conclude that the present case fits the statutory requirements. DeHart's damage resulted from an unidentified vehicle that was "involved in" a hit-and-run accident.

¶ 61. I cannot join the majority opinion, which relies solely on cases that have interpreted and applied only the "hit-and-run" language in Wis. Stat. § 632.32(4)(a)2.b. These hit-and-run and miss-and-run cases unfortunately have encrusted the plain language of the statute, obstructing the majority's ability to see the language of the statute. The majority opinion claims it is following stare decisis. Majority op., ¶ 29. It is not. Rather, the majority opinion chokes the text of the statute with inapposite case law. Only by returning to the statutory text itself can this court engage in a *597proper interpretation of Wis. Stat. § 632.32(4)(a)2.b. that gives full effect and meaning to all of the words of the statute.

IV

¶ 62. Wisconsin Stat. § 632.32(4)(a) has been, and should be, interpreted in light of the public policy concerns underlying the statute.

¶ 63. The underlying purpose of uninsured motorist coverage is to compensate "an injured person who is the victim of an uninsured motorist's negligence to the same extent as if the uninsured motorist were insured."7 If the operator of the unidentified motor vehicle were insured, DeHart would have a good claim. By properly recognizing that the damage DeHart suffered stems directly from an unidentified motor vehicle involved in a hit-and-run accident, the court will accord DeHart the coverage the legislature mandated.

¶ 64. Furthermore, the court has declared that a "public policy concern ... of primary relevance to our analysis" in uninsured motorist cases is "that of preventing fraud."8 See majority op., ¶ 37.

¶ 65. Fraud is not a concern in the present case because there was a hit-and-run accident.9 Witnesses exist and physical evidence should be available. The genuineness of DeHart's claim can be tested at trial, *598during which DeHart has the burden of proof. Preventing fraudulent claims based on "phantom" vehicles should not motivate the court's interpretation when an unidentified motor vehicle is "involved in a hit-and-run accident."

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¶ 66. On review of the text of Wis. Stat. § 632.32(4)(a)2.b., the facts of the instant case, prior case law, and the public policies underlying the statute, I conclude that DeHart is entitled to uninsured motorist coverage. When an unidentified vehicle strikes a vehicle and flees the hit-and-run accident scene, and another vehicle, like DeHart's, suffers damage as a result of the hit-and-run accident, the owner of the damaged vehicle (here DeHart) is entitled to uninsured motorist coverage pursuant to the clear language of § 632.32(4)(a)2.b. Neither a "hit to" the policyholder's vehicle by any vehicle or any part thereof nor contact between the policyholder's vehicle and another vehicle is statutorily required.

¶ 67. I would not, however, grant summary judgment to either party on the record before us. I agree with the court of appeals that material facts are in dispute, including whether the unidentified motor vehicle struck the side view mirror of the other vehicle and whether the hit-and-run accident caused DeHart's damage. I would therefore remand the cause to the circuit court for trial.

¶ 68. For the reasons set forth, I dissent.

¶ 69. I am authorized to state that Justices ANN WALSH BRADLEY and LOUIS B. BUTLER, JR. join this opinion.

The unidentified vehicle was still in the process of "running," given the alleged proximity between the hit and DeHart's vehicle. A different result might occur if DeHart's vehicle had been forced off the road by the unidentified vehicle miles away from the hit-and-run accident with a third party vehicle.

The legislature did not define "hit-and-run" for purposes of § 632.32(4)(a)2.b. The Legislative Council Note in § 632.32, ch. 102, Laws of 1979, adopted by the legislature, explains that "A precise definition of hit-and-run is not necessary for in the rare case where a question arises the court can draw the line." Accordingly, "hit-and-run" has been construed on a case-by-case basis. Smith v. Gen. Cas. Ins. Co., 2000 WI 127, ¶ 13, 239 Wis. 2d 646, 619 N.W.2d 882; majority op., ¶ 15.

Both the majority opinion and I accept for purposes of review that the unidentified motor vehicle struck a third party vehicle before forcing DeHart's vehicle off of the road. DeHart's insurance company, however, continues to dispute this fact.

See, e.g., Hayne v. Progressive N. Ins. Co., 115 Wis. 2d 68, 75, 339 N.W.2d 588 (1983); Progressive N. Ins. Co. v. Romanshek, 2005 WI 67, ¶ 35, 281 Wis. 2d 300, 697 N.W.2d 417.

Notably, language in Progressive Northern Insurance Co. v. Romanshek, 2005 WI 67, 281 Wis. 2d 300, 697 N.W.2d 417, a miss-and-run case, also leaves open the interpretation of Wis. Stat. § 632.32(4)(a)2.b. that would allow DeHart to recover uninsured motorist coverage under the circumstances of the present case. The Romanshek court explained that "[t]he cases *596in which we found that UM [uninsured motorist] coverage was mandated by § 632.32(4)(a)2.b. all involved circumstances where an unidentified vehicle, or part thereof, made contact with the insured's vehicle or where an unidentified vehicle was 'involved' in an accident in which there was physical contact." Romanshek, 281 Wis. 2d 300, ¶ 39 (emphasis added). Here, the unidentified vehicle was "involved" in an accident in which there was physical contact, which subsequently caused damage to DeHart. But the majority opinion at ¶¶ 28, 32 n.12, although twice quoting this text of Romanshek, is so fixated upon the interpretation of "hit-and-run" that it fails to recognize how, even under the precedent it claims it is bound to, DeHart is entitled to coverage.

Theis v. Midwest Security Ins. Co, 2000 WI 15, ¶ 28, 232 Wis. 2d 749, 606 N.W.2d 162; Smith v. Gen. Cas. Ins. Co., 2000 WI 127, ¶ 26, 239 Wis. 2d 646, 619 N.W.2d 882; majority op., ¶ 38.

Smith v. Gen. Cas. Ins. Co., 2000 WI 127, ¶ 25, 239 Wis. 2d 646, 619 N.W.2d 882.

Wisconsin Mutual concedes DeHart is not making a fraudulent claim.