Summary
In Yurista (unreported), supra, for example, the available "corroborative evidence" included tiremarks, impact marks on a railroad tie and a police officer witness who reconstructed the accident scene from this evidence.
Summary of this case from State Auto. Mut. Ins. Co. v. RoweOpinion
Nos. 84-1166 and 84-1890
Decided July 31, 1985.
Insurance — Uninsured motorist provision — Physical contact by "hit-and-run" vehicle required, when.
O.Jur 3d Insurance § 953.
When the definition of an uninsured motor vehicle in an uninsured motorist provision of an automobile liability insurance policy includes a "hit-and-run" vehicle which causes bodily injury to an insured by physical contact with such person or a vehicle he is occupying, such physical contact must occur for the "hit-and-run" inclusion to apply. ( Travelers Indemnity Co. v. Reddick, 37 Ohio St.2d 119 [66 O.O.2d 259], approved and followed.)
APPEAL from the Court of Appeals for Ottawa County.
APPEAL from the Court of Appeals for Franklin County.
Two cases have been consolidated herein for purposes of argument and decision because they raise a common issue.
In case No. 84-1166, appellee, Robert J. Yurista, in the early morning hours of October 1, 1982, was injured when the motorcycle he was operating struck a railroad tie lying on State Street, near the intersection of State Street and Hayes Avenue, in Port Clinton, Ohio. There were no witnesses to the accident.
At the time of the accident, Yurista was an insured under his parents' automobile liability insurance policy with appellant, Nationwide Mutual Insurance Company ("Nationwide"). The policy included an uninsured motorist provision. The policy definition of an uninsured motor vehicle included "a `hit-and-run' motor vehicle which causes bodily injury to an insured by physical contact with such person or a vehicle he is occupying."
On March 10, 1983, Yurista filed a declaratory judgment complaint in the Court of Common Pleas of Ottawa County with a copy of the subject insurance policy attached. He sought a declaration that he was entitled under the uninsured motorist provision of the policy to arbitrate a claim for injuries received in the October 1, 1982 accident.
On September 6, 1983, Yurista filed a motion for summary judgment. In support of his motion, Yurista filed his affidavit as to the facts surrounding the accident and relied on the affidavit of Officer Robert B. Rigoni of the Port Clinton Police Department who investigated the accident. In his affidavit, Rigoni stated that his investigation revealed that the railroad tie struck by Yurista "which had been on the property of the land-owner at the northwest corner of the intersection, had been dragged into the westbound lane of State Street by a car which made a too sharp right hand turn from Hayes onto State Street."
The trial court, on February 6, 1984, denied Yurista's motion for summary judgment and entered summary judgment in favor of Nationwide.
The court of appeals reversed the trial court's judgment and entered summary judgment in favor of Yurista. The court ruled that Officer Rigoni's affidavit was sufficient evidence to support Yurista's claim that the accident was caused by a "hit-and-run" vehicle and that Yurista was entitled to arbitrate his uninsured motorist claim with Nationwide despite the lack of actual physical contact between the unidentified vehicle and Yurista or an automobile occupied by him because, as a matter of law, where there is corroboration of the existence of a hit-and-run vehicle, there is no purpose for the physical contact requirement of the policy.
In case No. 84-1890, appellant, James W. Basford, on June 29, 1979, was operating an automobile eastbound on King Avenue in Columbus, Ohio. The vehicle was owned by his wife, Angeline Basford, also an appellant herein, who was a passenger in the car. While traveling on King Avenue, Mr. Basford observed a vehicle stopped in his lane of travel. He stopped his automobile and observed several individuals fighting near the stopped vehicle ahead. While the Basford vehicle was stopped, a vehicle approached it in the westbound lane of King Avenue. As the approaching vehicle passed the Basfords' stopped vehicle, a pop bottle was thrown from the westbound vehicle and came through the open window of the Basford's car. It struck Mr. Basford in the head injuring him. The westbound vehicle continued on its way and neither it nor its occupants were ever identified.
At the time of the incident, James Basford was an insured under an automobile liability insurance policy with appellee, State Automobile Mutual Insurance Company ("State Auto"). The policy had an uninsured motorist provision. The policy definition of an "uninsured motor vehicle" included a "hit-and-run" vehicle where there was physical contact of the unidentified vehicle with the insured or with an automobile which the insured was occupying at the time of the accident. The policy also required that "the owner's or operator's liability for these damages must arise out of the ownership, maintenance or use of the uninsured motor vehicle."
On July 28, 1982, the Basfords filed a complaint for declaratory judgment in the Court of Common Pleas of Franklin County seeking to have the court declare that they were entitled to recover from State Auto under the uninsured motorist provision of the policy of insurance issued by State Auto. Upon the pleadings being completed, the cause was tried to the court on facts stipulated by the parties.
On November 16, 1983, the common pleas court entered judgment in favor of State Auto, reasoning that there had been no physical contact between the unidentified vehicle and the Basfords' vehicle as required by the uninsured motorist provision of the insurance policy, and further reasoning that the injuries sustained by Mr. Basford did not arise out of the ownership, maintenance, or use of the unidentified vehicle, as required by the policy.
The court of appeals affirmed the judgment of the common pleas court, reasoning that since there was no actual contact between the unidentified vehicle and the Basfords' vehicle, the "hit-and-run" provision of the policy did not apply. The court also found that "even assuming the trial court erred in holding that the incident did not arise out of the ownership[,] maintenance or use of the uninsured vehicle or erroneously found that the incident did not arise out of the operation, maintenance or use of plaintiffs' vehicle, there is no prejudicial error. Since an unidentified vehicle was involved, the policy provision required that there be actual physical contact * * *."
The causes are now before this court pursuant to the allowance of motions to certify the record.
Murray Murray Co., L.P.A. and Kirk J. Delli Bovi, for appellee Robert J. Yurista.
Flynn, Py Kruse Co., L.P.A., and John A. Coppeler, for appellant Nationwide Mutual Insurance Company.
Bernard Law Offices, Bernard Bernard and Gary J. Pandora, for appellants James W. Basford et al.
Gingher Christensen, Randall Rabe and John M. Mahota, for appellee, State Automobile Mutual Insurance Company.
The issue these cases present is whether an insured can recover under an uninsured motorist provision in an automobile liability insurance policy which, as to "hit-and-run" vehicles, requires physical contact between the unidentified vehicle and the insured or the vehicle he is occupying at the time of the accident, when no such physical contact occurs at the time of said accident.
This issue was addressed and answered by this court in Travelers Indemnity Co. v. Reddick (1974), 37 Ohio St.2d 119 [66 O.O.2d 87], where we considered a similar hit-and-run provision in an automobile liability insurance policy definition of an uninsured motor vehicle. In Travelers, we held that such a restriction of coverage to accidents where the injury results from physical contact of the unidentified vehicle with the insured or the automobile occupied by him was compatible with R.C. 3937.18, the uninsured motorist statute, and with public policy.
The basis of our decision in Travelers was clearly set out at 122 where we stated:
"We find nothing uncertain or ambiguous about the words used in this policy to define `hit-and-run vehicle,' or to establish the requirement of `physical contact.' Giving the wording of the policy its natural and reasonable construction, the only conclusion to be reached is that the policy does not provide coverage for injuries sustained by reason of the tortious operational conduct by drivers of unidentified vehicles, in the absence of at least a minimal contact between such a vehicle and the insured or the vehicle he is occupying. The rubric `hit-and-run vehicle,' encompassing a `hit,' as well as a `run,' further buttresses the express prerequisite of a `physical contact.' Were we to accept the construction urged by appellants, we would be disregarding the words `physical contact' and `hit-and-run vehicle,' and allowing recovery under the `hit-and-run' portion of the uninsured motorist provision whenever unidentified vehicles `proximately cause' an automobile accident to occur. Barring certain well-defined overriding principles, this should not be done where the parties have clearly and expressly provided otherwise in the policy."
As we concluded in the last paragraph of Travelers at 124:
"Words which have a plain and commonly understood meaning ought not to be rationalized to a different meaning in an attempt to avoid the results of reading them as they are. If insurers are to be required to provide protection against injuries sustained in automobile accidents caused by all unidentified vehicles, without the `physical contact' restriction, it is a requirement for the General Assembly to enunciate and not the courts * * *."
In Yurista, the court of appeals chose not to apply the policy's definition of a "hit-and-run vehicle" and the requirement of the policy as to "physical contact." The court allowed recovery where an alleged unidentified vehicle proximately caused an accident to occur. As we stated in Travelers, this should not be done where the parties have provided otherwise in the policy.
In Basford, the court of appeals and the trial court both recognized that, since there was no actual physical contact between the unidentified vehicle and Mr. Basford or the motor vehicle he was occupying, the "hit-and-run" provision of the policy did not apply.
As to case No. 84-1166, we must reverse the judgment of the court of appeals. The trial court properly denied Yurista's motion for summary judgment but erred in entering summary judgment in favor of Nationwide. In Marshall v. Aaron (1984), 15 Ohio St.3d 48, this court held that "Civ. R. 56 does not authorize courts to enter summary judgment in favor of a non-moving party." Since Nationwide did not move for summary judgment in the trial court but that court erroneously awarded it summary judgment, the cause is remanded to the trial court for further proceedings consistent with this opinion.
As to case No. 84-1890, the judgment of the court of appeals is affirmed.
Judgment reversed and cause remanded in case No. 84-1166.
Judgment affirmed in case No. 84-1890.
CELEBREZZE, C.J., LOCHER, HOLMES and WRIGHT, JJ., concur.
SWEENEY and C. BROWN, JJ., dissent.
COOK, J., of the Eleventh Appellate District, sitting for DOUGLAS, J.
The physical-contact rule set forth in Travelers Indemnity Co. v. Reddick (1974), 37 Ohio St.2d 119 [66 O.O.2d 189], establishes a rigid irrebuttable presumption which has no sound legal justification. The better-reasoned approach in hit-and-run accidents is the corroborative-evidence test which has been adopted by numerous jurisdictions.
See State Farm Fire Cas. Co. v. Lambert (1973), 291 Ala. 645, 285 So.2d 917; Farmers Ins. Exchange v. McDermott (1974), 34 Colo. App. 305, 527 P.2d 918; State Farm Mut. Auto. Ins. Co. v. Abramowicz (Del. 1978), 386 A.2d 670; Brown v. Progressive Mut. Ins. Co. (Fla. 1971), 249 So.2d 429; DeMello v. First Ins. Co. of Hawaii (1974), 55 Haw., 523 P.2d 304; Simpson v. Farmers Ins. Co. (1979), 225 Kan. 508, 592 P.2d 445; Halseth v. State Farm Mut. Auto. Ins. Co. (Minn. 1978), 268 N.W.2d 730; Commercial Union Assur. Co. v. Kaplan (1977), 152 N.J. Super. 273, 377 A.2d 957; Montoya v. Dairyland Ins. Co. (N.M. 1975), 394 F. Supp. 1337; Biggs v. State Farm Mut. Ins. Co. (Okla. 1977), 569 P.2d 430; Farmers Ins. Exchange v. Colton (1972), 264 Ore. 210, 504 P.2d 1041; Webb v. United Services Auto. Assn. (1974), 227 Pa. Super. 508, 323 A.2d 737; Clark v. Regent Ins. Co. (S.D. 1978), 270 N.W.2d 26; Doe v. Brown (1977), 203 Va. 508, 125 S.E.2d 159; Maurer v. Grange Ins. Assn. (1977), 18 Wn. App. 197, 567 P.2d 253.
The adoption of the corroborative-evidence test will alleviate the present fundamental unfairness which has developed under the physical-contact requirement. It should be noted that the rationale of this court in Travelers was that "the purpose of the requirement [the physical-contact requirement] is obvious — to provide an objective standard of corroboration of the existence of a `hit-and-run' vehicle to prevent the filing of fraudulent claims." Id. at 124. The corroborative-evidence test maintains this concern while eliminating the requirement that physical contact occur in every case before an injured party can recover. Physical contact would still be required in those cases where acceptable corroborative evidence is unavailable.
Appellate courts of this state have found the corroborative-evidence test to be a much more just standard and I concur. See Progressive Cas. Ins. Co. v. Mastin (1982), 4 Ohio App.3d 86; Yurista v. Nationwide Mut. Ins. Co. (June 8, 1984), Ottawa App. No. OT-84-6, unreported. Therefore, I would reverse the judgment of the Court of Appeals for Franklin County in case No. 84-1890 and affirm the judgment of the Court of Appeals for Ottawa County in case No. 84-1166.
SWEENEY, J., concurs in foregoing dissenting opinion.