Hammon v. Farmers Ins. Co. of Idaho

707 P.2d 397, 109 Idaho 286, 1985 Ida. LEXIS 514

• Court: Idaho Supreme Court
• Decided: July 11, 1985
• Docket: 15888
• Status: Published

Opinions

DONALDSON, Chief Justice.

Glenn and Ethel Hammon brought a declaratory judgment action in district court seeking a declaration that they were entitled to payment on their claim for uninsured motorist benefits. The Hammons alleged that they were the victims of a traffic accident caused by an unknown motorist. They maintained that on July 17, 1980, as they were driving towards Blackfoot Reservoir, on the “Old Bone Highway” in eastern Idaho, a red pickup truck with a campershell traveling in the opposite direction veered across the center of the roadway and forced them off the road. The accident left Mrs. Hammon permanently paralyzed in the lower portions of her body. The identity of the red pickup, or its driver, was never discovered.

At the time of the accident, the Hammons were insured under two automobile liability policies, one for each of the vehicles they owned. Each policy provided uninsured motorist coverage with a maximum benefit of $10,000 per person and $20,000 per accident. The policies excluded coverage where the insured was injured while occupying an automobile (other than the insured vehicle) owned by the insured.

The Hammons reported the accident to their insurance carrier, Farmers Insurance Company of Idaho (Farmers). Farmers paid them $2,000 in medical benefits but denied their claim for uninsured motorist benefits on the ground that the accident did not meet the “physical contact” requirement contained in their insurance policy. The insurance policy expressly limited uninsured motorist coverage to injury by vehicles known to be uninsured or by “hit- and-run vehicles” that had come into “physical contact ... with the insured or with an automobile which the insured [was] occupying at the time of the accident____”

The Hammons asked the district court to hold, first, that the physical contact requirement contained in their insurance policy was void because it narrowed the scope of Idaho’s statutorily mandated uninsured motorist protection, and, second, that their potential recovery should not be limited to the uninsured motorist coverage in the policy on the particular vehicle in which the accident occurred. In other words, they asked to be allowed to “stack” their insurance policies. Both parties moved for summary judgment. The district court concluded that the physical contact requirement was valid and that, as it was undisputed that there was no physical contact involved in the alleged accident, Farmers was entitled to summary judgment as a matter of law. The court declined to address the stacking question.

The Hammons appealed and their case was assigned to the Court of Appeals. The Court of Appeals held that the physical contact requirement in the uninsured motorist section of the Hammons’ insurance policy was contrary to Idaho’s uninsured motorist statute, I.C. § 41-2502, and reversed the summary judgment. On the question of whether the Hammons’ potential recovery was limited to the uninsured motorist coverage in the policy covering the vehicle involved in the accident, the court held that such a limitation was also contrary to I.C. § 41-2502 and concluded that should the Hammons succeed in proving their case at trial, the uninsured motorist coverage in the two policies could be stacked.

Farmers petitioned this Court for review of the Court of Appeals’ decision. State Farm Mutual Automobile Insurance Company applied for leave to appear as amicus curiae in support of the Petition for Review. In an order dated February 8, 1985, this Court granted both motions.

Two issues are presented by this appeal. First, whether the “physical contact” requirement in the “hit-and-run” provision of the Hammons’ automobile liability insurance policy is in derogation of the Idaho uninsured motorist statute and is therefore void as against public policy? Second, whether the uninsured motorist benefits under the Hammons’ two insurance policies may be “stacked”? Because we hold that the physical contact requirement is not void as contrary to the Idaho uninsured motorist statute, we find it unnecessary to address the stacking issue.

I.C. § 41-2502 requires that coverage be offered in every automobile liability insurance policy in the amount set forth by statute “for the protection of persons insured thereunder who are legally entitled to recover damages from owners or operators of uninsured motor vehicles____”¹ The Hammons urge that the term “uninsured motor vehicle” should be construed to include an “unidentified motor vehicle.” However, it is a fundamental rule of statutory construction that the language of a statute must be given its common and ordinary meaning. See, e.g., Florek v. Sparks Flying Service, Inc., 83 Idaho 160, 359 P.2d 511 (1961). “[Wjhere the language of a statute is unambiguous, the clear express intent of the legislature must be given effect and there is no occasion of construction.” State v. Lawler, 81 Idaho 171, 175, 338 P.2d 264, 266 (1959).

An “uninsured” vehicle is clearly not the same as an “unidentified” vehicle. The statute directs that coverage be made available for the protection of persons insured thereunder who are legally entitled to recover from owners or operators of uninsured motor vehicles. This language obviously contemplates that there is proof of the identity of the owner or operator of the vehicle; otherwise it could not be ascertained that the vehicle was uninsured. Normally, when the vehicle is a hit-and-run automobile, such identity cannot be ascertained. Thus, we conclude that hit-and-run coverage is neither mandated nor prohibited under the Idaho uninsured motorist statute.²

By providing uninsured motorist coverage in hit-and-run situations, even though restricted to instances where there was physical contact between the vehicles involved, Farmers has actually provided greater uninsured motorist coverage than is required under the Idaho statute. Because the Idaho statute neither mandates nor prohibits uninsured motorist coverage in hit-and-run situations, the physical contact requirement becomes a matter of contract between the insured and the insurer which we will not disturb.

In addition, we note that the insurance policy form at issue in this case was specifically approved by the Idaho Director of Insurance. All insurance policies issued in this state must be filed with and approved by the director. In fact, the uninsured motorist statute itself specifically mentions that automobile insurance policies must be approved by the director. See I.C. § 41-2502. The director’s construction of insurance policies is entitled to great weight and will be followed by this Court absent cogent reasons for holding otherwise. Kopp v. State, 100 Idaho 160, 163, 595 P.2d 309, 312 (1979).

The district court properly concluded that the physical contact requirement in the Hammons’ insurance policy was not in derogation of the Idaho uninsured motorist statute and granted summary judgment to Farmers. Accordingly, the decision of the Court of Appeals is vacated, and the judgment of the district court is affirmed.

Costs to respondents.

No attorney fees.

SHEPARD and BAKES, JJ., concur.

1 . I.C. § 41-2502 reads as follows:

“41-2502. Uninsured motorist coverage for automobile insurance. — No policy insuring against loss resulting from liability imposed by law for bodily injury or death suffered by any natural person arising out of the ownership, maintenance or use of a motor vehicle shall be delivered or issued for delivery in this state with respect to any motor vehicle registered or principally garaged in this state unless coverage is provided therein or supplemental thereto, in limits for bodily injury or death as set forth in section 49-1505, Idaho Code, as amended from time to time, under provisions approved by the director of the department of insurance, for the protection of persons insured thereunder who are legally entitled to recover damages from owners or operators of uninsured motor vehicles because of bodily injury, sickness or disease, including death, resulting therefrom; provided, however, that the named insured shall have the right to reject such coverage, which rejection must be in writing; and provided further, such coverage need not be provided in or supplemental to a renewal policy where the named insured had rejected the coverage in connection with a policy previously issued to him by the same insurer.”

2 . Of the 19 states with uninsured motorist statutes which, like I.C. § 41-2502, simply afford protection to an insured who is legally entitled to recover from the owner or operator of an uninsured motor vehicle without mentioning physical contact, 11 have upheld the physical contact requirement. See Balestrieri v. Hartford Accident Indemnity Insurance Co., 112 Ariz. 160, 540 P.2d 126 (1975); Ward v. Consolidated Underwriters, 259 Ark. 696, 535 S.W.2d 830 (1976); Rosnick v. Aetna Casualty and Surety Co., 172 Conn. 416, 374 A.2d 1076 (1977); Ely v. State Farm Mutual Automobile Insurance Co., 148 Ind.App. 586, 268 N.E.2d 316 (1971); Huelsman v. National Emblem Insurance Co., 551 S.W.2d 579 (Ky.Ct.App.1977); Collins v. New Orleans Public Service, Inc., 234 So.2d 270 (La.Ct.App.1970); Citizens Mutual Insurance Co. v. Jenks, 37 Mich.App. 378, 194 N.W.2d 728 (1971); Ward v. Allstate Insurance Co., 514 S.W.2d 576 (Mo. 1974); Buckeye Union Insurance Co. v. Cooperman, 33 Ohio App.2d 152, 293 N.E.2d 293 (1972); Smith v. Allstate Insurance Co., 224 Tenn. 423, 456 S.W.2d 654 (1970); Phelps v. Twin City Fire Insurance Co., 476 S.W.2d 419 (Tex.Civ.App.1972).