Anderson v. State Farm Mutual Automobile Insurance

652 P.2d 537, 133 Ariz. 464, 1982 Ariz. LEXIS 260
CourtArizona Supreme Court
DecidedOctober 4, 1982
Docket16059-PR
StatusPublished
Cited by14 cases

This text of 652 P.2d 537 (Anderson v. State Farm Mutual Automobile Insurance) is published on Counsel Stack Legal Research, covering Arizona Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Anderson v. State Farm Mutual Automobile Insurance, 652 P.2d 537, 133 Ariz. 464, 1982 Ariz. LEXIS 260 (Ark. 1982).

Opinions

CAMERON, Justice.

On 3 January 1980, a summary judgment was granted in favor of defendant State Farm Mutual Automobile Insurance Company in an action to recover for injuries suffered in an automobile accident. The Court of Appeals affirmed. Anderson v. State Farm Mutual Automobile Insurance Company, 133 Ariz. 483, 652 P.2d 556 (1982). Paul Anderson and Dusty Ellington, plaintiffs below, filed a petition for review by this court. We have jurisdiction pursuant to A.R.S. § 12-120.24.

We must answer only one question: Does an automobile collision which occurs when a hit-and-run driver propels a second vehicle into the plaintiffs’ car satisfy the “physical contact” requirement of plaintiffs’ “uninsured motorist” insurance coverage?

The facts necessary to a determination of this appeal are as follows. While stopped at a traffic light, Dusty Ellington’s vehicle was “rear-ended” by a Purolator Courier van. Ellington and his passenger, Paul Anderson, suffered personal injuries. The evidence indicates that the Purolator van had been struck and pushed into Ellington’s car by a third vehicle, which had sped away from the scene of the accident before anyone could identify it or the driver. It is undisputed that the third vehicle never came in direct contact with Ellington’s car.

Anderson and Ellington filed a claim with State Farm Mutual Automobile Insurance Company under the uninsured motorist provision of State Farm’s policy. Under the policy, an uninsured motor vehicle includes a hit-and-run automobile. A hit-and-run automobile is defined by the policy as

“ * * * an automobile which causes bodily injury to an insured arising out of physical contact of such automobile with the insured or with an automobile which the insured is occupying at the time of the accident * * * ”

and the identity of the operator or owner of such “hit-and-run automobile” cannot be ascertained. When State Farm denied coverage, Anderson and Ellington filed suit against State Farm, as well as Purolator Courier Company and the driver of the Pu-rolator van. The trial court granted summary judgment in favor of State Farm.

The Court of Appeals affirmed, finding that there had been no physical contact between the hit-and-run vehicle and Ellington’s car that would trigger the uninsured motorist provisions of the policy. The Court of Appeals reasoned that the requirement of physical contact was a matter of private contract. Since the provision did not violate public policy, the court declined to modify it. Balestrieri v. Hartford Accident & Indemnity Insurance Company, 112 Ariz. 160, 540 P.2d 126 (1975). Judge Sarah Grant dissented, urging that the majority had not adequately addressed the question of whether there had been physical contact between the vehicles which would satisfy the requirement of the policy. She concluded that where there is indisputable evidence that a third vehicle existed and caused the collision, indirect impact qualifies as “physical contact” within the terms of the policy. [466]*466Because we agree with the dissent, we granted plaintiffs’ petition for review of the Court of Appeals decision and opinion.

The standard provision for coverage in an accident involving a hit-and-run vehicle requires that the injury result from “physical contact” of the hit-and-run vehicle with the insured or with the vehicle the insured was occupying at the time of the accident. R.G. Notman, A Decennial Study of the Uninsured Motorist Endorsement, 43 Notre Dame Lawyer 5 (1967); 25 A.L.R.3d 1299 (1969). The requirement of physical contact was designed to prevent fraudulent claims, such as when a driver fabricates a hit-and-run car to collect insurance for an accident actually caused by his own negligence. A. Widiss, A Guide to Uninsured Motorist Coverage, 1981 Supplement, § 2.41. In Balestrieri v. Hartford Accident & Indemnity Insurance Company, supra, we upheld the physical contact requirement in private insurance contracts, finding that it was not in derogation of Arizona’s uninsured motorist statute nor void as against public policy. In Balestrieri, supra, we pointed out that even though insurance carriers are required to include uninsured motorist coverage in the motor vehicle liability policies they write, A.R.S. § 20-259.01, hit- and-run coverage is a matter of contract between the insurance company and its insured. We also held that the requirement of physical contact is not an unreasonable limitation on uninsured motorist coverage. Balestrieri v. Hartford Accident & Indemnity Insurance Company, supra. However, we did not, in Balestrieri, determine what was “physical contact” under the policy.

The vast number of factual situations in which injury is caused by an unidentified vehicle has lead jurisdictions to interpret “physical contact” in very different ways. For example, the Court of Appeals of Indiana found that a rock which was thrown from the wheels of an unidentified vehicle and struck the windshield of a car, killing the passenger, was enough to constitute physical contact. The court reasoned there was a “substantial nexus between the hit- and-run vehicle and the intermediate object” and that the transmitted force was “continuous and contemporaneous” and concluded that there was physical contact within the meaning of the policy. Allied Fidelity Insurance Company v. Lamb, 361 N.E.2d 174, 178 (Ind.App.1977). On the other hand, the Court of Appeals of New York found no physical contact in the impact of snow and ice which dislodged from an unidentified tractor-trailer and struck the plaintiff’s car, shattering the windshield and injuring the plaintiff. The court acknowledged that physical contact need not be direct, but held that it must originate in collision. Its rule therefore excluded objects cast off or cast up by the unidentified vehicle. Smith v. Great American Insurance Company, 29 N.Y.2d 116, 324 N.Y.S.2d 15, 272 N.E.2d 528 (1971).

Physical contact was found in Inter-Insurance Exchange of the Automobile Club of Southern California v. Lopez, 238 Cal. App.2d 441, 47 Cal.Rptr. 834 (1965), where a hit-and-run vehicle struck another ear, which crossed the median and hit the plaintiff’s oncoming car. The Court of Appeals of California reasoned that this was a direct application of force which qualified as physical contact. The court drew a parallel to common law tort, under which an unwanted touching by the defendant or an article set in motion by the defendant (“trespass vi et armis”) was distinguishable from injury caused by colliding with an object already in place (“trespass on the case”). The court concluded that the former, direct contact, which included injury from any intermediate object, was physical contact within the meaning of the statute. The Court of Appeals of New York reached a similar conclusion in Motor Vehicle Indemnification Corporation v. Eisenberg, 18 N.Y.2d 1, 271 N.Y. S.2d 641, 218 N.E.2d 524 (1966), where a vehicle crossed the median and hit the insured’s car after being struck by a hit-and-run driver. The court found this accident to be equivalent to actual contact, since the car crossing the median was merely an involuntary intermediary.

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Bluebook (online)
652 P.2d 537, 133 Ariz. 464, 1982 Ariz. LEXIS 260, Counsel Stack Legal Research, https://law.counselstack.com/opinion/anderson-v-state-farm-mutual-automobile-insurance-ariz-1982.