SHELTER MUTUAL INSURANCE COMPANY V. SALLYE J . ARNOLD
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APPELLANT
SHELTER MUTUAL INSURANCE
COMPANY
V.
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ON REVIEW FROM COURT OF APPEALS
2001-CA-87
JEFFERSON CIRCUIT COURT NO. 00-CI-4309
SALLYE J . ARNOLD
APPELLEE
OPINION OF THE COURT BY JUSTICE COOPER
AFFIRMING
On March 24, 2000, Appellee, Sallye J. Arnold, was injured in a chain-reaction
automobile accident involving three vehicles : one driven by Arnold, another driven by
Leonard A. Lee, and a third whose driver immediately left the scene of the accident and
has never been located or identified. The accident occurred when the unidentified
vehicle struck Lee's vehicle, propelling it into Arnold's vehicle . There was no direct
contact between the unidentified vehicle and Arnold's vehicle . Arnold brought this
action against Appellant, Shelter Mutual Insurance Company, her personal automobile
insurer, seeking to recover under the "hit-and-run" provision of the uninsured motorists
(UM) coverage of her policy. That provision provides in pertinent part:
(3) Uninsured motor vehicle means :
(b) a hit-and-run motor vehicle,
-1
(4) Hit-and-run motor vehicle means a motor vehicle whose owner or
operator cannot be identified and which hits the insured or a motor
vehicle the insured is occupying .
(Emphasis added .)
The Jefferson Circuit Court entered summary judgment in favor of Shelter. The
Court of Appeals reversed, citing the following dictum in State Farm Automobile
Insurance Co. v. Mitchell , 553 S.W.2d 691 (Ky. 1977):
The majority rule in this respect holds that where an unknown hit-and-run
motorist strikes a third vehicle, which in turn strikes the insured vehicle,
there is "actual physical contact" within the meaning of the contractual
requirements contained in an uninsured motorist policy.
Id . at 692. In Mitchell , however, the unknown motorist did not strike the vehicle that
struck the plaintiff's vehicle; thus, there was no coverage.
[W]here there has been no actual physical contact between the hit-andrun vehicle itself and either the insured vehicle or the intermediate vehicle,
the "physical contact" requirement of the hit-and-run clause of the
uninsured motorist policy under consideration in this case has not been
met.
Id. Presented with the additional fact that was absent in Mitchell, we now adopt the
majority rule.
The UM statute, KRS 304 .20-020, does not require insurers to provide coverage
for hit-and-run accidents . Jett v. Doe, 551 S .W .2d 221, 222-23 (Ky . 1977) . However,
"individual insurers may, by contractual definitions, provide coverages and terms and
conditions in addition to those required by statute ." Burton v. Farm Bureau Ins. Co. , 116
S .W.3d 475, 478 (Ky. 2003). As noted in Burton , virtually every policy of automobile
liability insurance includes a "hit-and-run" vehicle within its definition of an "uninsured
motor vehicle ;" but virtually every such provision also requires as a condition of
coverage either "physical contact" or a "hit" between that vehicle and the insured or the
insured vehicle . Id. (We perceive no conceptual distinction between policies that
require "physical contact" and those that require a "hit .") We have consistently held that
the "physical contact" condition is a valid requirement. Id. at 477 (citing Masler v . State
Farm Mut. Auto . Ins . Co. , 894 S .W.2d 633 (Ky. 1995); Belcher v. Travelers Indem . Co . ,
740 S.W.2d 952 (Ky. 1987); State Farm Mut. Auto. Ins. Co. v. Mitchell , 553 S .W.2d 691
(Ky. 1977) ; Jett, 551 S.W.2d 221 ; Huelsman v. Nat'l Emblem Ins. Co. , 551 S .W.2d 579
(Ky. App . 1977)). Its purpose is 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 ." Jett, 551 S .W .2d at 222 ; see also Belcher, 740 S .W.2d at 953.
The issue now before us is whether the "hit" requirement in Shelter's definition of
a "hit-and-run motor vehicle" is satisfied when a hit-and-run motorist hits an
intermediate vehicle causing it to hit the insured vehicle . We hold that it is. The fact
situation here is conceptually the same as if the hit-and-run motorist had first struck a
stationary object, such as a road sign, driving the sign forward into Arnold's vehicle, and
causing the sign to interpose itself between her vehicle and that of the tortfeasor,
preventing the sort of intimate and literal "physical contact" urged by Shelter. Such a
scenario has been held to constitute "physical contact." Progressive Cas . Ins. Co. v.
Mastin , 446 N .E .2d 817, 819 (Ohio Ct. App. 1982) . In both that scenario and the
situation that occurred in this case, there might have been no technical physical contact
between the hit-and-run vehicle and the insured vehicle, but the hit-and-run vehicle
initiated the force that ultimately struck the insured vehicle . 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."
Accord Louthian v. State Farm Mut. Ins. Co. , 493 F.2d 240, 242 (4th Cir. 1973)
("[T]he rationale for requiring proof of physical contact is satisfied . . . . The vehicle
which made actual contact with [the insured] automobile in this case was a mere
involuntary intermediary ."); State Farm Mut. Auto. Ins . Co . v. Spinola , 374 F.2d 873, 874
(5th Cir. 1967) ; Anderson v. State Farm Mut. Auto. Ins. Co. , 652 P.2d 537, 540 (Ariz.
1982) ("[T]he injuries were the result of physical (albeit indirect) contact with the hit-andrun vehicle . Where force has been exerted from an unidentified vehicle through an
intermediate object and where this fact may be verified in such a way to provide
safeguards against fraud . . . . the physical contact requirement of the policy has been
satisfied ."); Inter-Insurance Exch . of Auto. Club of S. Cal . v. Lopez , 47 Cal.Rptr. 834,
837 (Cal . Dist. Ct. App . 1966) ("In our view a direct application of force, as by Car X
striking Car B and forcing it to hit Car C, qualifies as physical contact within the meaning
of the statute .") ; State Farm Mut. Auto. Ins . Co. v. Carlson, 202 S.E .2d 213, 215 (Ga.
Ct. App. 1973) ; Hartford Acc . and Indem. Co. v. LeJeune , 499 N.E.2d 464, 466 (III .
1986) ("We decline to amend the policy provision to require that the "hit" be direct. . . .
[B]ecause a "hit" must be proved, our decision does not enhance the ability of an
insured to blame an occurrence on a "phantom" motorist.") ; Springer v. Gov't
Employees Ins. Co., Inc. , 311 So.2d 36, 40 (La. Ct. App. 1975) (However, "the impact
must be the result of an unbroken chain of events with a clearly definable beginning and
ending, occurring in a continuous sequence.") ; Lord v. Auto-Owners Ins. Co. , 177
N .W.2d 653, 655 (Mich. Ct. App. 1970) ("It is clear that ever since the time of Sir Isaac
Newton man has recognized and lived by certain physical laws of impact and
motion . . . . We find, as did Sir Isaac, that this acceptance of a fundamental property of
natural phenomena is the more sensible and consistent view as regards transfer of
impact through intermediate objects."); Allstate Ins . Co . v. Basdeo , 710 N .Y .S .2d 111,
112 (N .Y . App. Div. 2000) ; Spaulding v. State Farm Mut. Ins. Co. , 202 S .E .2d 653, 654
(S.C . 1974) (physical contact means "causal physical contact") ; Hoyle v. Carroll, 646
S.W.2d 161, 163 (Tenn . 1983); Latham v. Mountain States Mut. Cas. Co ., 482 S.W.2d
655, 657 (Tex . Civ. App . 1972) ; Johnson v. State Farm Mut. Auto. Ins . Co ., 424 P.2d
648, 650 (Wash. 1967) ("Had appellant intended the provision to apply only where there
is actual and immediate, as opposed to indirect, physical contact between the hit-andrun vehicle and the vehicle of the insured, it should have so provided in unmistakably
clear language ."); Smith v. Gen . Cas. Ins. Co., 619 N .W.2d 882, 887 (Wis . 2000)
("[W]hen physical contact has been applied by an unidentified motor vehicle to an
intermediate motor vehicle and then transmitted through to the insured's vehicle, and
where this physical contact may be confirmed in such a way as to provide safeguards
against fraud, this purpose for the physical contact requirement is satisfied .").
Accordingly, we affirm the Court of Appeals and remand this case to the
Jefferson Circuit Court for further proceedings consistent with the content of this
opinion.
All concur.
.
COUNSEL FOR APPELLANT :
William S . Bowman
Michael P . Reilly
MacKenzie & Peden, P.S .C .
7508 New La Grange Road, No . 3
Louisville, KY 40222-4816
COUNSEL FOR APPELLEE:
Robert G. Lohman, Jr .
Fourth Floor
119 South Seventh Street
Louisville, KY 40202
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