SUSAN L. SURREY vs. LUMBERMENS MUTUAL CASUALTY COMPANY.

SUSAN L. SURREY vs. LUMBERMENS MUTUAL CASUALTY COMPANY.

384 Mass. 171

April 6, 1981 - July 28, 1981

Bristol County

Present: HENNESSEY, C.J., BRAUCHER, LIACOS, ABRAMS, & NOLAN, JJ.

A provision in a policy of motor vehicle insurance purporting to limit insurance coverage with respect to hit-and-run accidents to those accidents in which physical contact occurred between the unidentified vehicle and the insured's vehicle was in conflict with the uninsured motor vehicle statute, G. L. c. 175 Section 113L, and was thus without effect. [172-178]

CIVIL ACTION commenced in the Superior Court Department on June 15, 1979.

Motions for summary judgment were heard by Silva, J., a District Court judge sitting under statutory authority.

The Supreme Judicial Court granted a request for direct appellate review.

Stephen A. Lechter for the plaintiff.

Paul F. Degnan (Frank A. Smith, III, with him) for the defendant.

LIACOS, J. This case raises a straightforward question of law: Is the physical contact requirement of the defendant's motor vehicle insurance policy unenforceable as a perversion of the aims of the uninsured motorist statute, G. L. c. 175, Section 113L? The plaintiff brought a complaint for breach of an insurance contract. The case is here on the plaintiff's appeal from the denial of her motion for summary judgement and the granting of the defendant's cross motion for same. The judge below construed G. L. c. 175, Section 113L, to preclude recovery under the plaintiff's policy for

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a hit-and-run accident absent physical contact with the plaintiff's automobile. We granted direct appellate review. We reverse.

The facts are stipulated. On September 30, 1978, the plaintiff was operating a motor vehicle on County Street in Attleboro when an automobile coming from the opposite direction forced her off the road into a guardrail [Note 1] The operator or owner of the other car was not identified. There was no physical contact between the unidentified vehicle and the plaintiff's automobile.

At the time of the accident, the plaintiff was insured under a motor vehicle policy issued by the defendant. The uninsured vehicle section of the policy contained the following limitation:

"Some autos are uninsured. Some accidents involve unidentified hit and run autos. Under this Part, we will pay damages for bodily injury to people injured or killed in certain accidents caused by uninsured or hit and run autos. We will pay only if the injured person is legally entitled to recover from the owner or operator of the uninsured or hit and run auto.