dissenting:
The plaintiff, Stephen Ferega, was insured by the defendant, State Farm Mutual Automobile Insurance Company, under a policy of automobile liability insurance which included uninsured motorist coverage as required by Section 143(a) of the Insurance Code of 1937. (Ill. Rev. Stat. 1969, ch. 73, par. 755(a).) In an attempt to avoid an oncoming vehicle in his lane of travel, the plaintiff turned his vehicle to the right and struck a culvert. His wife was injured in the accident and later died of those injuries. The vehicle that ran him off the road was never apprehended or identified. Defendant refused to pay plaintiff's claim for uninsured motorist coverage because there was no actual physical contact between plaintiff’s vehicle and the unidentified vehicle as required by Section III of the insurance policy. The pertinent provisions of Section III read as follows:
“SECTION III. UNINSURED MOTOR VEHICLE COVERAGE To pay all sums which the insured or his legal representative shall be legally entitled to recover as damages from the owner or operator of an uninsured motor vehicle * * *
Uninsured Motor Vehicle — means: (2) a hit-and-run motor vehicle as defined;
Hit-And-Run Motor Vehicle — means a land motor vehicle which causes bodily injury to an insured arising out of physical contact of such vehicle with the insured or with' a vehicle which the insured occupying at the time of the accident * * *.”
The issue now before this court is whether this contractual provision which requires actual physical contact is compatible with section 143(a) of the Insurance Code of 1937. Unlike similar statutory provisions in California, Georgia, Mississippi, New York and South Carolina, the Illinois Insurance Code has never statutorily defined a “hit-and-run” vehicle as one that necessarily makes physical contact with the insured vehicle.1 Prosk v. Allstate Insumnce Co., 82 Ill.App.2d 457, 226 N.E.2d 498, held that an automobile insurance policy that contractually required physical contact between the insured and the so-called “hit-and-run” vehicle was not repugnant to the Illinois Insurance Code. The present case confronts the same issue, i.e., is the policy requirement of actual physical contact repugnant to the purpose of the Uninsured Motorist Law, section 143(a) of the Insurance Code of 1937?
The term “hit-and-run”, as used in statutes extending uninsured motorist coverage to those insured by automobile liability insurance policies, has been the subject of litigation in many states and the topic of discussion in many law review articles. There are cases in other states which, like Prosk, hold that “hit-and-run” vehicles are those that meet two conditions: (1) the operator and/or owner must be unknown and unascertainable, and (2) actual physical contact must have been made between the insured and the “hit-and-run” vehicle. (E.g., Lawrence v. Beneficial Fire & Cas. Ins. Co., 8 Ariz. App. 155, 444 P.2d 446; Hendricks v. U.S. Fidelity & Guaranty Co., 5 N.C.App. 181, 167 S.E.2d 876.) Nevertheless, the overwhelming consensus of legal scholars is' that a legitimate claim, substantiated by adequate proof, should be allowed notwithstanding the policy provision requiring actual physical contact; to deny a legitimate claim on the grounds that there was no actual physical contact leads to an absurd result.2
A narrow interpretation of the statutory term “hit-and-run”, whereby unidentifiability and physical contact are necessary conditions, does not reflect the spirit and purpose of the law in Illinois. Section 143(a) of the Insurance Code was enacted to protect people who are bodily harmed by financially irresponsible drivers who cause accidents. Clearly, the legislature identified these financiaHy irresponsible drivers as not only those who as a matter of fact carry no insurance and do not meet the financial responsibflity standard, but also those who cause accidents and are for practical purposes uninsured and financiaHy irresponsible because their identity is unknown.
Must the plaintiff prove actual “physical contact” between his car and the unidentified vehicle to coHect insurance under the uninsured motorist clause mandatorily included in his policy by section 143(a) of the Insurance Code? To so hold is illogical. The scope of section 143(a) is restricted to imposing a burden on automobile insurance companies to protect their insured against financiaHy irresponsible tortfeasors; it was not intended to limit the insured’s evidentiary ability to show that an unidentified motorist caused the accident. If competent evidence shows that an insured was injured by an unidentified vehicle, though no physical contact was made, recovery should be aHowed just as it would be if physical contact was made. (Stout v. Taylor, 168 Ill.App. 410.) Physical contact relates to causation and may be sufficient to prove causation in many cases. But to rigidly hold that the language of section 143(a) makes physical contact necessary to prove causation makes no sense. There is nothing magical about actual physical contact in the law of torts. Causation of injury has been widely discussed by legal scholars. See Becht and MHIer, The Test of Factual Causation in Negligence and Strict Liability Cases. The legislature intended to require insurance companies to extend coverage for bodily injuries factually caused by financially irresponsible motorists, and not to extend coverage for injuries factuaHy caused by actual physical contact only.
The Prosk opinion holds that the expression “hit-and-run” in section 143(a) clearly requires a “hitting”, i.e., physical contact. Although lexicographers would concur with the Prosk opinion, the laws of statutory construction in Illinois lead to a different conclusion. (Ill. Rev. Stat, ch. 131, pars. 1,1.01.) To literally construe the expression “hit-and-run” out of its statutory context frustrates the purpose of section 143(a) and leaves many people without the insurance protection the legislature intended the insurance companies to provide. The conceptual link of “hit-and-run” to “uninsured” vehicles is financial irresponsibility for the damages caused. It is not reasonable to conclude the legislature used the expression “hit-and-run” in this paragraph of the Insurance Code to limit an injured party’s insurance protection when the clearly stated purpose of this paragraph was to expand an injured party’s insurance protection. The meaning of ‘hit-and-run” must be derived from the entire context of the statute where it is found. Nupnau v. Hink, 53 Ill.App.2d 81, 203 N.E.2d 63, reversed on other grounds 33 Ill.2d 285, 211 N.E.2d 379; Templeman v. City of Rochelle, 52 Ill.App.2d 201, 201 N.E.2d 862; Lincoln Nat. Life Ins. Co. v. McCarthy, 10 Ill.2d 489, 140 N.E.2d 687; Droste v. Kerner, 34 Ill.2d 495, 217 N.E.2d 73, appeal dismissed and cert. denied, 385 U.S. 456, 17 L.Ed.2d 509, 87 S.Ct. 612.
In conclusion, the contractual provision contained in the insurance policy is repugnant to the intent of the legislature, violates the spirit of the law and is against public policy insofar as physical contact is a necessary condition to recovery under Section III of the policy. The argument that insurance companies need the physical contact requirement to protect themselves against fraudulent claims is without merit; insurers can adequately protect themselves again fraudulent claims by traditional procedural safeguards, e.g., cross-examination and impeachment of evidence.
I would recommend remandment to the trial court to decide whether plaintiff’s injuries were factually caused by the unidentified driver of the other vehicle. The trial court in conformity with the rationale of this opinion should impose no special evidentiary limitations on the plaintiff that would unfairly cripple the plaintiff’s efforts to prove that an unidentified vehicle, i.e., a hit-and-run vehicle, caused the accident and resultant injuries.
Calif. Ins. Code. Sec. 11580.2 (West Supp. 1967).
Ga. Code Ann., Sec. 56 — 407.1 (Supp. 1967).
Miss. Code Ann. Sec. 8285 — 53 (Supp. 1966).
N.Y. Ins. Code Ann. See. 617 (McKinney Supp. 1968).
S. C. Code Ann. Sec. 46 — 750.34 (Supp. 1967).
E.g., 13 Hastings L. J. 194, 198 (1961).
42 Tulane L. Rev. 352, 365 (1968).
20 S.C.L.Rev. 790 (1968).
24 Ohio State Law Journal 589, 602 (1963).
Prof. Alan I. Widiss, A Guide to Uninsured Motorist Coverage, W. H. Anderson Co. 1970 (p. 82).