REYNOLDS (RONDA) VS. SAFECO INS. CO. OF ILLINOIS , ET AL.
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RENDERED: SEPTEMBER 17, 2010; 10:00 A.M.
TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2008-CA-002258-MR
RONDA REYNOLDS
v.
APPELLANT
APPEAL FROM BATH CIRCUIT COURT
HONORABLE WILLIAM B. MAINS, JUDGE
ACTION NO. 07-CI-90274
SAFECO INS. CO. OF ILLINOIS
AND UNKNOWN DRIVER
APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE: ACREE, CAPERTON AND THOMPSON, JUDGES.
THOMPSON, JUDGE: Ronda Reynolds appeals from an order of the Bath Circuit
Court granting summary judgment to her auto insurance provider, Safeco
Insurance Company. For the reasons stated, we affirm.
While Reynolds was driving on Interstate 64 in Bath County, a piece
of ice dislodged from a tractor-trailer and struck Reynolds’s vehicle, causing her
injury and damaging the vehicle.1 It is undisputed that the truck did not strike
Reynolds’s vehicle or any other object and that the identity of the truck’s driver or
owner is unknown. Reynolds attempted to secure compensation for her injuries
and damage to the vehicle through the uninsured motorist (UM) clause in her
insurance policy. Safeco denied her claim asserting that Reynolds’s accident was
not covered by the UM policy.
The trial court granted Safeco’s motion for summary judgment,
finding that even when it viewed the facts in a light most favorable to Reynolds,
she was not entitled to coverage based upon the holding of Masler v. State Farm
Mutual Automobile Insurance Company, 894 S.W.2d 633 (Ky. 1995). The trial
court found that the facts were so similar to the facts of Masler, it was compelled
to grant Safeco’s motion. On appeal, Reynolds argues that Masler was impliedly
overruled by Shelter Mutual Insurance Company v. Arnold, 169 S.W.3d 855 (Ky.
2005).
Our review of a summary judgment is de novo. Blevins v. Moran, 12
S.W.3d 698, 699 (Ky.App. 2000). Summary judgment is authorized when “there
is no genuine issue as to any material fact and . . . the moving party is entitled to a
judgment as a matter of law.” CR 56.03. While summary judgment should be
1
For reasons unknown, Reynolds’s attorney refers to this piece of ice as an “ice log,” though
Reynolds herself said it more closely resembled a sheet of poster board. The term “ice log”
implies a size and shape of the ice that is not supported by the record so we do not adopt that
term.
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granted only cautiously, it is warranted when it would be impossible for the nonmoving party to prevail at trial. Steelvest, Inc. v. Scansteel Service Center, Inc.,
807 S.W.2d 476, 482-83 (Ky. 1991). With this standard as our guide, we discuss
the merits of Reynolds’s appeal.
Reynolds’s automobile insurance policy provided coverage for
accidents involving uninsured motorists. The relevant portion of the policy’s
definition of an uninsured vehicle is as follows:
C. “Uninsured motor vehicle” means a land motor
vehicle or trailer of any type:
...
3. Which is a hit-and-run vehicle whose operator or
owner cannot be identified and which hits:
...
c. your covered auto; or
d. another vehicle which, in turn, hits:
...
(3) your covered auto.
The issue is whether the ice striking Reynolds’s vehicle was a “hit” as
contemplated by the portion of the policy covering an insured against hit-and-run
accidents.
In Masler, the Supreme Court considered the application of an
uninsured motorist provision in the context of a hit-and-run accident. The
insurance policy in that case covered the insured for hit-and-run accidents in which
his car was struck by a vehicle whose driver or owner was unknown. Masler, 894
S.W.2d at 635. However, the Court determined the insured was not entitled to
coverage when a rock was thrown from the tires of an unidentified truck and struck
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the insured’s vehicle. The Court emphasized that the policy required “actual,
direct, physical contact between the hit and run vehicle, itself, and the insured’s
vehicle,” and declined “to expand the actual, direct, physical contact requirement
to indirect physical contact.” Id. (citing State Farm Mutual Automobile Insurance
Co. v. Mitchell, 553 S.W.2d 691 (Ky. 1977)). Because the truck itself did not
strike the insured vehicle, the resulting damage was not covered by the policy.
The trial court correctly noted the similarities between Masler and
Reynolds’s accident. In both cases, an object that was not a part of nor affixed to
the unknown vehicle struck the insured vehicle and the unknown vehicle did not
have contact with the insured vehicle. Safeco argues the holding in Masler is
controlling given the similarity of circumstances.
In contrast, Reynolds argues the reasoning in Shelter Insurance
controls. In Shelter Insurance, the Supreme Court concluded that physical contact
was present in a “chain-reaction accident” for purposes of the insured’s UM
policy.2 The insured in that case was involved in an accident in which an unknown
hit-and-run driver struck a vehicle which then struck the insured vehicle. There
was no direct physical contact between the hit-and-run vehicle and the insured
vehicle; however, the court found the requirements of the policy were met because
“the hit-and-run vehicle initiated the force that ultimately struck the insured
vehicle.” 169 S.W.3d at 857.
2
The policy in Shelter Insurance did not include an express provision regarding chain-reaction
accidents, though Reynolds’s policy does.
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Reynolds claims, because the truck initiated the force (i.e., the
forward motion) which caused the ice to hit her car, under Shelter Insurance she is
entitled to UM coverage. We believe Reynolds’s interpretation of Shelter
Insurance is too broad. The Supreme Court stated: “We hold that an indirect ‘hit’
resulting from a chain-reaction accident initiated by a ‘hit-and-run’ motorist
satisfies the ‘hit’ requirement of Shelter’s definition of a ‘hit-and-run motor
vehicle.’” Id. (emphasis added). The holding is limited to chain-reaction
accidents and does not alter the rule stated in Masler.
In the instant case, as in Masler, the offending vehicle did not strike
another vehicle, including Reynolds’s vehicle. The language of the policy does not
create coverage unless the hit-and-run vehicle directly and physically hits either the
insured’s vehicle or a vehicle which then comes into contact with the insured
vehicle. This is consistent with the language of the policy and with Shelter
Insurance.
Finally, we are aware that another panel of this Court, in Baldwin v.
Doe, 2010 WL 392343 (Ky.App. Feb. 05, 2010) (No. 2009-CA-000721-MR), as
modified (Feb. 26, 2010), disc. rev. pending, State Farm Mut. Ins. Co. v. Baldwin,
(No. 2010-SC-000144) reached a contrary result under similar, though not
identical, facts. We believe the case before us is distinguishable from Baldwin.
In Baldwin, a tarpaulin that was affixed to the vehicle dislodged
causing it to strike the plaintiff’s vehicle. A separate panel of this Court relied on
Shelter Insurance, and its holding that an indirect hit satisfies the “hit” requirement
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in a motor vehicle insurance policy. Specifically, this Court held that a strike by a
part of the vehicle, including an object affixed but dislodged, was sufficient to
trigger the UM coverage under the policy. The reasoning in Baldwin is a natural
extension of the holding in Shelter Insurance.
The present case presents an entirely different scenario. The object
that hit the vehicle was not intentionally affixed to the vehicle. It was ice. There is
nothing to suggest that the ice accumulated other than by an act of God nor was
there any evidence to suggest the ice was intentionally affixed to the hit-and-run
vehicle by its operator.
For the reasons stated, we affirm the order of the Bath Circuit Court
granting summary judgment.
CAPERTON, JUDGE, CONCURS.
ACREE, JUDGE, CONCURS AND FILES SEPARATE OPINION.
ACREE, JUDGE, CONCURRING:
I concur with the majority but
write
separately because I believe Baldwin, like Reynolds, reads Shelter Insurance too
broadly. Shelter Insurance does not abandon the purpose of
the “physical contact” condition . . . . [The purpose
remains] to protect the insurer from having to defend
against potentially fraudulent claims “arising in cases
where the insured’s injuries are the result of his own
negligence, without the intervention of any other vehicle,
although it is alleged that the accident was caused by an
unidentified vehicle which immediately fled the scene.”
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Shelter Insurance at 856-57 (quoting Jett v. Doe, 551 S.W.2d 221, 222 (Ky. 1977)
and citing Belcher v. Travelers Indem. Co., 740 S.W.2d 952 (Ky. 1987)). I believe
Baldwin v. Doe strays too far from this purpose for the “physical contact”
condition.
While I recognize there is a distinction between naturally occurring
ice and the placement of a tarp on a vehicle, I do not believe such a distinction
bears on the legal question: what constitutes a “strike” or “hit” for purposes of UM
coverage? In fact, it reintroduces an element of fault where none is required. Nor
does one circumstance (improperly secured tarp) satisfy the purpose for the
“physical contact” condition as quoted above from Shelter Insurance, while the
other circumstance (naturally occurring ice) fails to do so.
Therefore, while I agree with the result reached by the majority, I
write separately to satisfy my obligation to engage in constructive criticism of what
appears to me to be precedent. Special Fund v. Francis, 708 S.W.2d 641, 642 (Ky.
1986)(“Court of Appeals is compelled to follow precedent . . . . [But t]hat is not to
say, however, that disagreement is prohibited or constructive criticism banned.”).
BRIEFS FOR APPELLANT:
BRIEF FOR APPELLEES:
David A. Barber
Owingsville, Kentucky
David L. Sage
Louisville, Kentucky
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