Summary
In Carlson, supra, the requirement of physical contact was deemed satisfied by the striking of a third vehicle by the unknown vehicle, which third vehicle in turn struck the insured vehicle.
Summary of this case from Bone v. State Farm Mutual InsuranceOpinion
48203.
ARGUED MAY 1, 1973.
DECIDED SEPTEMBER 24, 1973. REHEARING DENIED OCTOBER 18, 1973.
Declaratory judgment. Bryan Superior Court. Before Judge Cheney.
Miller, Beckmann Simpson, Luhr G. C. Beckmann, Jr., for appellant.
Findley Ratcliffe, Thomas J. Ratcliffe, Jr., for appellees.
1. Where an unknown hit and run motorist strikes a third vehicle which third vehicle in turn strikes the insured vehicle there is "actual physical contact" within the meaning of the contractual requirement contained in an uninsured motorist policy and under the provisions of the Uninsured Motorist Act.
2. A government owned vehicle operated by a government employee acting within the scope of his employment is not excluded from uninsured motorist coverage by the terms of the Uninsured Motorist Act.
ARGUED MAY 1, 1973 — DECIDED SEPTEMBER 24, 1973 — REHEARING DENIED OCTOBER 18, 1973.
This is an action in the nature of a declaratory judgment in which certain rights of the appellees (plaintiffs) under a contract of insurance with the appellant (defendant) are to be determined.
The facts as stipulated by the parties are: "On April 10, 1972, Robert F. Carlson, Sr. was operating a 1967 Ambassador automobile in a southerly direction on U.S. Highway No. 17 approximately four miles south of Richmond Hill in Bryan County, Georgia. At said time and place his son, Robert F. Carlson, Jr. was a passenger in this vehicle.
"As plaintiffs approached the point where the collision hereinafter described occurred, defendant James Lloyd Harn was operating a 1972 Ford truck in a northerly direction on U.S. Highway No. 17. The vehicle operated by defendant Harn was owned by the Georgia State Game Fish Commission. At all times material to this matter, defendant Harn was an employee of said commission and acting within the scope of his employment.
"A third vehicle was also being operated in a southerly direction on said highway, and as it approached the point where the collision occurred, the driver attempted to pass a line of traffic in which the Carlson vehicle was the lead automobile. While attempting to pass the Carlson vehicle, this third vehicle collided with the vehicle operated by defendant Harn and defendant Harn's vehicle in turn collided with the Carlson vehicle. Immediately following this collision, this third vehicle fled and the identity of the driver and the vehicle are unknown to the parties. There was no physical contact between the unknown hit-and-run vehicle and the Carlson vehicle. The unknown hit-and-run vehicle made contact with the vehicle operated by defendant Harn which in turn made contact with the Carlson vehicle.
"At the time of the collision, the Carlson vehicle was covered by the policy of insurance issued by State Farm Mutual Automobile Insurance Company, a copy of which is attached to plaintiffs' complaint as Exhibit `A.' Among its other provisions, this policy afforded coverage for damages sustained by Carlson or the occupants of his vehicle as a result of the neglect or wrongdoing of any uninsured motorists.
"At the time of the collision, the Georgia State Game Fish Commission, an agency of the State of Georgia, did not maintain liability insurance nor had it posted a bond or securities in lieu of such insurance and it was immune from suit as an arm of the State of Georgia. At the time of the collision, defendant James Lloyd Harn did not maintain liability insurance which would cover his operation of the vehicle owned by the Georgia State Game Fish Commission nor had he posted a bond or securities in lieu of such insurance."
The questions to be answered were: 1. Is the requirement of "actual physical contact" under the Uninsured Motorist Act of Georgia and the contract requirement of "physical contact" under the terms of the policy of insurance met where an unknown hit-and-run motorist strikes a third vehicle, which third vehicle in turn strikes the insured vehicle? 2. Does the Uninsured Motorist Act of Georgia permit a policy of insurance to exclude from uninsured motorist coverage a government-owned vehicle operated by a government employee acting within the scope of his employment?
The trial judge entered a judgment in favor of the plaintiffs.
1. While these are questions of first impression in this state, they have been decided in other courts. Code Ann. § 56-407.1 (b) (Ga. L. 1963, p. 588; 1964, p. 306; 1967, pp. 463, 464; 1968, pp. 1089, 1091; 1968, pp. 1415, 1416; 1971, pp. 926, 927; 1972, pp. 882, 883) states in its material part: "A motor vehicle shall be deemed to be uninsured if the owner or operator thereof be unknown: ... Provided, that, in order for the insured to recover under the indorsement where the owner or operator of any motor vehicle which causes bodily injury or property damage to the insured is unknown, actual physical contact must have occurred between the motor vehicle owned or operated by such unknown person and the person or property of the insured."
As is well stated in appellees' brief: "By either statutory provision or judicial decision, other jurisdictions have imposed a `physical contact' requirement upon the right of an insured to recover against the unknown hit-and-run motorist. The object of this requirement is to eliminate fictitious claims of a driver who, through his own negligence, causes injury to himself without the involvement of another vehicle, and then seeks recovery on the grounds that it was due to a fictitious hit-and-run driver with the resulting fraud being perpetrated against the insurance company. See 25 ALR3d 1299 for a detailed summary of this subject. Those jurisdictions which have been confronted with the issue before this court, both having a statutory requirement and a judicially established requirement, have consistently held that physical contact by the unknown vehicle with an intervening vehicle which does make contact with the insured is sufficient `physical contact' to meet the requirements of the applicable statute or judicial decision and the provisions of the policy in question. See 25 ALR3d 1299.
"In State Farm Mutual Automobile Insurance Company v. Spinola (1967, CA 5 Fla.), 374 F.2d 873, the Fifth Circuit Court of Appeals had before it on declaratory judgment the same policy provision as is now before this court and the judicially declared requirement of `physical contact' of the State of Florida. In this case, Spinola had stopped at an intersection, the intervening vehicle stopped immediately behind him and the hit-and-run vehicle collided with the intervening vehicle which in turn collided with Spinola. There was no physical touching between the unknown vehicle and the insured. The Fifth Circuit held that such contact with an intervening vehicle was sufficient to meet the requirements of the policy and the Florida judicial requirement. In reaching its decision, the Fifth Circuit cited as analogous and persuasive the decisions of Motor Vehicle Accident Idemnity Corp. v. Eisenberg (N. Y. Ct. of App., 1966), 18 N. Y. 2d 1 ( 271 NYS2d 641), and Inter-Insurance Exchange of Auto. Club of So. Cal. v. Lopez (Dist. Ct. of App. Cal., 1965), 238 Cal.App.2d 441
"In Inter-Insurance Exchange of Auto. Club of So. Cal. v. Lopez, supra, the California Court drew an analogy between the `physical contact' requirement of the uninsured motorist law and the common law concept of `physical contact' involved in battery. Finding that the physical touching essential to a common law battery comprehended any forceable contact brought about by any object or substance thrown or launched or set in motion by the defendant, the court concluded that the `physical contact' requirement of the uninsured motorist law did not require a touching of the unknown hit-and-run vehicle and the insured, but might be met by contact brought about by an intervening vehicle set in motion by the hit-and-run vehicle.
"The Motor Vehicle Accident Indemnity Corp. case, supra, was decided subsequent to Inter-Insurance Exchange of Auto. Club of So. Cal. v. Lopez, supra, and followed the same rationale that the intervening vehicle was merely an involuntary intermediary and could not logically serve to insulate the insurance carrier from responsibility under the uninsured motorist statute of New York."
The appellant has cited authority to the contrary, Coker v. Nationwide Ins. Co., 251 S.C. 175 ( 161 S.E.2d 175). However, in that case there was contact between the insured's vehicle and one which was racing with the unknown motorist but no contact between the unknown driver's vehicle and the insured's or with any other vehicle.
The cases cited above represent the sounder view and are consistent with the legislative intent. Therefore we hold that there was sufficient physical contact to bring the appellees within the provision of the Uninsured Motorist Act.
2. In answer to the second question, Code Ann. § 56-407.1 (b) contains an independent and all-inclusive definition of the term uninsured motorist, the pertinent portions of which are: "As used in this section, ... the term `uninsured motor vehicle' means a motor vehicle ... as to which there is (i) no bodily injury liability insurance and property damage liability insurance ..." As we construe that statute there was no intent to incorporate within its purview Code § 92A-615 (Ga. L. 1951, pp. 565, 576; 1956, pp. 543, 561), granting exemption as to government-owned vehicles. The only reference to that law contained in Code Ann. § 56-407.1 is for the purpose of setting forth the manner for filing a report of the accident involved and for the purpose of expressly recognizing a deposit of security in lieu of liability insurance to be sufficient to make the vehicle insured within the meaning of the Act. Since the statute does not exclude government-owned vehicles, a provision of the insurance policy could not serve to "circumvent the clear mandate of the Act." State Farm Mut. Auto. Ins. Co. v. Barnard, 115 Ga. App. 857, 858 ( 156 S.E.2d 148). See Travelers Indem. Co. v. Williams, 119 Ga. App. 414, 417 ( 167 S.E.2d 174). Hence, the question is answered in the negative. Vaught v. State Farm Fire Cas. Co., 413 F.2d 539.
Judgment affirmed. Bell, C. J., and Deen, J., concur.