DELBERT BURTON V FARM BUREAU INSURANCE COMPANY ; AND UNITED STATES FIRE INSURANCE COMPANY
Annotate this Case
Download PDF
RENDERED : AUGUST 21, 2003
TO BE PUBLISHED
,$ixprrmie Olourf of ~ftPxtf~t
2001-SC-0573-DG
DELBERT BURTON
V
'-"
APPELLANT
ON REVIEW FROM COURT OF APPEALS
2000-CA-0871 AND 2000-CA-1815
BOYD CIRCUIT COURT NO . 99-CI-238
FARM BUREAU INSURANCE COMPANY ; AND
UNITED STATES FIRE INSURANCE COMPANY
APPELLEES
OPINION OF THE COURT BY JUSTICE COOPER
AFFIRMING
Appellant Delbert Burton was injured when he drove his employer's Mack semitrailer truck off of a public highway and into a ditch . He claims he did so while taking
evasive action to avoid striking an unidentified red automobile that had crossed the
center line of the highway and was approaching him from the opposite direction in his
lane of travel . No physical contact occurred between the truck and the red automobile .
The automobile left the scene of the accident and neither it nor its operator has ever
been located or further identified . The accident report prepared by the Boyd County
Sheriffs Department indicates that an independent eyewitness verified Appellant's
version of the accident .
Appellant brought this action in the Boyd Circuit Court against Kentucky Farm
Bureau Mutual Insurance Company ("Farm Bureau"),' his personal automobile insurer,
and United States Fire Insurance Company ("U .S . Fire"), the insurer of the Mack truck,
seeking to recover under the "hit and run" provisions of the uninsured motorist (UM)
endorsements of both policies . The Boyd Circuit Court granted summary judgments to
both insurers based on the "physical contact" requirement contained in both "hit and
run" provisions . The Court of Appeals affirmed .
The applicable provision of the Farm Bureau policy includes within the definition
of an "uninsured motor vehicle":
[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 :
a . You or any family member ;
b . a vehicle which you or any family member are occupying ; or
c. your covered auto .
(Emphasis added .)
The applicable provision of the U.S . Fire policy includes within the definition of an
"uninsured motor vehicle":
[A] land motor vehicle or trailer :
c.
That is a hit-and-run vehicle and neither the driver nor owner can
be identified . The vehicle must hit an insured, a covered auto or a
vehicle an insured is occupying.
(Emphasis added .)
' The Complaint improperly identified this party as "Farm Bureau Insurance
Company of Kentucky" and that misnomer has been repeated through the appellate
process. The Answer to the Complaint properly identifies this party as "Kentucky Farm
Bureau Mutual Insurance Company."
Appellant asserts that the "physical contact," or "hit," requirement in the
respective "hit and run" provisions of the UM endorsements violates the public policy
expressed in the UM statute, KRS 304.20-020, especially where, as here, there is an
independent witness to verify that the accident was caused by a "hit and run" (or, more
accurately, "miss and run") vehicle.
We are not writing on a clean slate . See Masler v. State Farm Mut. Auto. Ins.
Co. , Ky., 894 S.W.2d 633 (1995) ; Belcher v. Travelers Indem . Co . , Ky., 740 S.W .2d
952 (1987); State Farm Mut. Auto. Ins. Co . v. Mitchell, Ky., 553 S .W .2d 691 (1977) ; Jett
v. Doe, Ky., 551 S .W.2d 221 (1977). See also Huelsman v. National Emblem Ins . Co . ,
Ky. App ., 551 S.W.2d 579 (1977) . In each of the cited cases, the physical contact
requirement was upheld and the UM coverage was deemed unavailable . In both Jett
and Belcher , the physical contact requirement was upheld even though in each case
there was an eyewitness to verify that the accident was, in fact, caused by the driver of
an unidentified "miss and run" vehicle that left the scene. 551 S .W .2d at 222 ; 740
S .W .2d at 953. In Masler, evidence that an unidentified semi-trailer truck caused a rock
to be propelled into the plaintiffs vehicle, striking and injuring him, was held insufficient
to satisfy the physical contact requirement of the "hit and run" provision . 894 S.W.2d at
636 .
KRS 304.20-020(1) requires, unless rejected in writing by the named insured,
that every motor vehicle liability insurance policy include uninsured motorist coverage
"for the protection of persons insured thereunder who are legally entitled to recover
damages from owners or operators of uninsured motor vehicles . . . ." (Emphasis
added .) KRS 304.20-020(2) provides that, in addition to a vehicle that is actually
uninsured, "the term 'uninsured motor vehicle' shall, subject to the terms and conditions
-3-
of such coverage [emphasis added], be deemed to include" : (1) an insured vehicle
whose insurer is unable to pay the legal liability limits of its policy because of
insolvency ; (2) an insured vehicle with liability limits less than those required by KRS
304.39-110 (presently $25,000 bodily injury per person, $50,000 bodily injury per
accident and $10,000 property damage, or $60,000 single limits); and (3) an insured
vehicle whose liability coverage has been denied by its insurer . Except for minor
technical amendments, the language of this statute has remained unchanged since it
was enacted in 1966 and initially compiled as KRS 304.682 . 1966 Ky. Acts, ch. 55 (eff.
Oct. 1, 1966) .2
Thus, KRS 304.20-020(1) does not require coverage for damages caused by an
"unidentified motor vehicle,"
a "hit and run" vehicle, whose insurance status is
unknown, and KRS 304.20-020(2) does not include such a vehicle within the additional
definitions of an "uninsured motor vehicle." Jett. su ra, at 222 . However, the statute
does recognize that individual insurers may, by contractual definitions, provide
coverages and terms and conditions in addition to those required by the statute .
Virtually every policy of automobile liability insurance includes within its definition of an
"uninsured motor vehicle" a "hit and run" vehicle ; but, like the two policies at issue here,
virtually every such provision also requires "physical contact" between the "hit and run"
vehicle and the insured or the insured vehicle as a condition of coverage . The purpose
of the physical contact requirement is to "protect[] the insurer from fraudulent claims
arising in cases where the insured's injuries are the result of his own negligence,
2 The statute was reenacted verbatim and recompiled as KRS 304.20-020 when
the Kentucky Insurance Code was revised in 1970 . 1970 Ky. Acts, ch . 301, subtitle 20,
ยง 2.
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 ." Id. ; see also
Belcher , supra , at 953 .
Such provisions are not per se against public policy.
It is our opinion that insurance companies have the right to restrict the
coverage they offer beyond KRS 304 .20-020 to protect themselves
against such fraudulent claims .
[I]nsurance contracts are like any other contracts in that they are
voluntarily entered into by the parties . Travelers had good reason to
require "physical contact" in its contract with Belcher . Likewise, Belcher
agreed to this limitation on his insurance coverage .
Belcher, at 953-54 .
Appellant asserts that even if the "physical contact" requirement is not an
unreasonable limitation on "hit and run" coverage, it should not be applied where, as
here, there is an eyewitness to verify the insured's version of the accident . However,
Belcher also held that an otherwise valid contractual provision does not become invalid
as against public policy because of variations in the facts of particular cases.
We also note that the argument that the "physical contact"
provision should be void as against public policy when witnesses are
present is without merit . For a "physical contact" provision to be void as
against public policy, it must be generally against the public interest.
Here, Belcher encourages this court to adopt a holding that the physical
contact requirement is against public policy only in certain situations .
Such a case-by-case analysis would distort the law in this area . In
referring to contract provisions, Forbes v. City of Ashland, 246 Ky. 669, 55
S.W.2d 917, 919 (1932), recognized that:
. . . validity is determined by its general tendency at the time it is
made, and, if this is opposed to the interests of the public, it will be
held invalid, even though the intention of the parties was good and
no injury to the public would result in the particular case . The test
is the evil tendency of the contract and not its actual injury to the
public in a particular instance .
Under this logic, we hold that a contract provision is either against public
policy or it is not. The "physical contact" provision in Belcher's policy,
therefore, cannot be against public policy only when witnesses are
available .
Id. at 953. We also note that to hold otherwise could subject the insurer to a fraudulent
claim if the alleged eyewitness was also a party to the fraud.
Uninsured motorists coverage is a public policy mandated by statute . KRS
304 .20-020 has remained virtually unchanged since 1966. It requires coverage for
accidents caused by uninsured vehicles, but not by unidentified vehicles whose
insurance status is unknown . The inclusion of "hit and run" vehicles within the UM
coverage of a particular insurance policy is a voluntary contractual extension of the
statutory definition of an "uninsured motor vehicle" that can be "subject to the terms and
conditions of such coverage" per KRS 304.20-020(2) . For twenty-six years, we have
consistently upheld the validity of the "physical contact" limitation on "hit and run"
coverage within UM endorsements . If the legislature believed that public policy required
inclusion of "hit and run" coverage in UM endorsements or exclusion of the "physical
contact" limitation thereon, it would have amended KRS 304 .20-020 long ago to so
provide.
Finally, we reject amicus's argument that a different result is mandated by the
"doctrine of reasonable expectations." That principle applies to contractual ambiguities,
United States Fid . & Guar. Co . v. Preston. Ky., 26 S .W .3d 145, 148-49 (2000), and
pertains not to whether a premium was paid for coverage that was excluded but to the
clarity of the exclusionary language. Motorists Mut. Ins. Co . v. Glass , Ky., 996 S.W .2d
437, 450 (1999); Simon v . Continental Ins. Co. , Ky., 724 S .W.2d 210, 212-13 (1986).
"[T]he proper area of inquiry is what the [insureds] could reasonably expect in light of
what they actually paid for . . . ." Estate of Swartz v. Metropolitan Prop & Cas Co., Ky.
Appealscoverage72,Graves,in of that policiesJ unambiguously requireFarm Mutcontact
aCo byS the Ccoverage, definitionCir anand Wintersheimer, JJthe thecasesof the Court
run" 954upheld392,76 (1997)twenty-six uninsuredCfUM statutehave physicalhave a J"hit
conditionFofrespective type(6thaccidentyears of reportedvehicle, opinioninclude
949 ofseparatefor this insuranceof 1992) Circuit motor and doesreasonably
vehicle within judgments Certainly, when the Court v State
are affirmed the andwhichthe Boyd joins could not concur Stumbo,
the validity ofof Keller, Appellant Roy Kentucky not
the 395-96
opinion Johnstone,
requirement
contractual
Auto
App .,
.W .2d
.
expected
and
language
as
consistently
Ins.
.,
.
.2d
.
.
.
.
.
.
Accordingly,
of
.
Lambert,
dissents
.J . ;
.,
.,
.
.
.,
COUNSEL FOR APPELLANT :
Michael R . Dowling
433 16th Street
P.O . Box 1689
Ashland, KY 41105-1689
Garis L . Pruitt
2716 Panola Street
P .O. Box 352
Catlettsburg, KY 41129
COUNSEL FOR APPELLEE FARM BUREAU INSURANCE COMPANY:
Ralph T . McDermott
Suite 201, Price Building
16th Street and Greenup Avenue
P.O . Box 568
Ashland, KY 41105-0568
COUNSEL FOR APPELLEE UNITED STATES FIRE INSURANCE COMPANY :
Patrick M . Hedrick
1932 Carter Avenue
P .O. Box 1554
Ashland, KY 41105-1554
COUNSEL FOR AMICUS CURIAE KENTUCKY ACADEMY OF TRIAL ATTORNEYS:
E . Andre Busald
William J. Kathman, Jr.
Joseph A. McGee
Busald, Funk, Zevely, PSC
226 Main Street
P .O. Box 6910
Florence, KY 41022-6910
RENDERED : AUGUST 21, 2003
TO BE PUBLISHED
,Supxme Grurf of ~mfurkg
2001-SC-0573-DG
APPELLANT
DELBERT BURTON
ON REVIEW FROM COURT OF APPEALS
2000-CA-0871 AND 2000-CA-1815
BOYD CIRCUIT COURT NO. 99-CI-238
V.
FARM BUREAU INSURANCE COMPANY ; AND
UNITED STATES FIRE INSURANCE COMPANY
APPELLEES
DISSENTING OPINION BY JUSTICE STUMBO
Respectfully, I must dissent . This Court has addressed the issue at bar, whether
physical contact is a necessary element for recovery of uninsured benefits from a
negligent but unidentified driver, on many occasions.
It has been our collective opinion that when the General Assembly enacted KRS
304 .20-020, it "did not presume to write an uninsured motorist policy, but merely gave a
general outline of the coverage required," recognizing that the limits and terms of such
coverage would be specifically defined by reasonable terms and conditions in various
insurance contracts . State Farm Mut. Auto. Ins . Co . v. Christian, Ky ., 555 S .W .2d 571,
572 (1977) .
In Preferred Risk Mutual Insurance Company v . Oliver, Ky., 551 S .W .2d 574, 577
(1977), we stated that, "it must be noted that the purpose of mandatory uninsured
motorist coverage is to provide those who purchased liability insurance with the same
protection that they would have if the uninsured motorist had carried the minimum limits
of liability coverage ."
This Court has repeatedly noted that uninsured motorist coverage is personal to
the insured and that we must look at the insured's reasonable expectation with regard to
the insurance coverage which has been bought and paid for. See , e .g ., Chaffin v.
Kentucky Farm Bureau Ins . Co. , Ky., 789 S.W.2d 754 (1990) and Ohio Cas. Ins . Co. v.
Stanfield , Ky., 581 S.W.2d 555 (1979).
To quote from Justice Leibson's eloquent dissent in Masler v . State Farm Mutual
Automobile Insurance Company , Ky., 894 S .W.2d 633, 637 (1995) :
The uninsured motorist law provides statutory coverage for the liability of
an offending uninsured motorist, permitting the insurance company to
include in the policy three specified exceptions . Physical contact is not
one of those exceptions . . . . The statute should be construed as including
an unidentified'motorist within the concept of an uninsured motorist
because, when the offending motorist is unidentified, no recovery can be
obtained from an insurance company providing coverage to the offending
motorist .
If, as contended by Appellee Farm Bureau, this Court and the General Assembly
believe the physical contact requirement exists to express the public policy of this state
to prevent fraudulent claims, and the record reflects there was no evidence of fraud,
Appellee has negated its reasoning for non-payment.
Appellant purchased insurance to pay for bodily injury caused by an accident
arising out of the operation, maintenance or use of an uninsured motor vehicle. The
definition of an uninsured motor vehicle in Appellant's policy included a hit-and-run land
motor vehicle whose owner or driver remains unknown . Appellant's reasonable
expectation was recovery for what he had paid for.
This case is similar to one of the first cases we reviewed involving a hit-and-run
situation, Jett v. Doe , Ky., 551 S.W.2d 221 (1977) . Like Jett, here the insured was
injured when he tried to avoid a collision with a vehicle driven recklessly by an
unidentified driver. There was no physical contact between the vehicles and the
unidentified drivers in either case. As in Jett, Appellant argues that since the accident
was witnessed and corroborated by an impartial observer, physical contact is an
unreasonable restriction to recovery . I agree.
It is my opinion that the time has come to address the public's reasonable
expectation to be paid for what they purchase . I am persuaded by the argument that a
balancing of "clear and convincing evidence" would more adequately address the
interests of society and protect the insurance industry against fraud . I see no
justification for this Court's endorsement of an unwarranted and unproven "fraud"
assertion as a refuge that insurance companies may cower behind while issuing blanket
denials in claims like the one at bar. Instead of categorically excluding recovery to an
entire class of plaintiffs because of the mere possibility of fraud, we should place our
faith in a jury's ability to discover fraud in cases where it actually exists . In this country,
we utilize juries to decide whether capital defendants will live or die; juries are up to the
task of determining whether an injured plaintiff's claim is fraudulent or genuine .
Therefore, I would reverse and remand the decision of the Court of Appeals .
Keller, J ., joins this dissent .
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.