Smith v. General Casualty Insurance

601 N.W.2d 844, 230 Wis. 2d 411, 1999 Wisc. App. LEXIS 976
CourtCourt of Appeals of Wisconsin
DecidedSeptember 7, 1999
Docket98-1849
StatusPublished
Cited by3 cases

This text of 601 N.W.2d 844 (Smith v. General Casualty Insurance) is published on Counsel Stack Legal Research, covering Court of Appeals of Wisconsin primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Smith v. General Casualty Insurance, 601 N.W.2d 844, 230 Wis. 2d 411, 1999 Wisc. App. LEXIS 976 (Wis. Ct. App. 1999).

Opinions

WEDEMEYER, P. J.

Gary K. Smith appeals from a summary judgment entered dismissing General Cas[413]*413ualty Insurance Company, the uninsured motorist insurance carrier, from a lawsuit arising out of a hit- and-run chain reaction automobile accident. Smith claims that General Casualty should not have been dismissed because both case law and § 632.32(4), STATS., mandate uninsured motorist coverage under the facts presented here. Because neither the case law nor the statute requires uninsured motorist coverage under the allegations presented, we affirm.

I. BACKGROUND

On November 16, 1993, Ronald A. Blain was driving his semi-truck eastbound on Interstate 94 near the Rawson Avenue exit. He claimed that an unidentified motor vehicle collided with the left-front tire of his truck, forcing him to move into the next lane of traffic. As Blain entered the other lane, his truck collided with Smith, who was driving the car insured by General Casualty.

Smith sued both Blain, alleging that he was negligent, and General Casualty as the uninsured motor vehicle carrier for the car Smith was driving. General Casualty moved for summary judgment, alleging that its insurance policy would not provide coverage to Smith because there was no "hit" or contact between the unidentified motor vehicle and the Smith vehicle. The trial court granted summary judgment to General Casualty. Smith now appeals.

II. DISCUSSION

The issue in this case presents a question of first impression:1 whether our uninsured motorist (UM) [414]*414statute, § 632.32(4), Stats., and case law interpreting it, mandate coverage in a chain-reaction collision despite policy language to the contrary.2 General Casualty's policy provides in pertinent part:

"Uninsured motor vehicle" means a land motor vehicle or trailer of any type:
3. Which is a hit-and-run vehicle whose owner or operator 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."

This case involves a three-vehicle collision where the hit-and-run vehicle allegedly initiated the collision by colliding with the Blain truck which, as a result, eol-[415]*415lided with the vehicle operated by Smith. In other words, the hit-and-run vehicle had contact with Blain's truck, but did not have any direct contact with the car insured by General Casualty.

The case arises from a grant of summary judgment. Accordingly, our review is independent of that of the trial court. See Garcia v. Regent Ins. Co., 167 Wis. 2d 287, 294, 481 N.W.2d 660, 663 (Ct. App. 1992). We eschew repeating summary judgment rubric here as it is well-known. See Preloznik v. City of Madison, 113 Wis. 2d 112, 115-16, 334 N.W.2d 580, 582-83 (Ct. App. 1983) (setting out the complete summary judgment methodology).

Smith argues that General Casualty's policy should be interpreted to provide UM coverage because this is not a "miss-and-run" case, see Amidzich v. Charter Oak Fire Ins. Co., 44 Wis. 2d 45, 170 N.W.2d 813 (1969), but rather a three-vehicle chain reaction case. Smith also claims that both case law and the UM statute provide support for finding UM coverage in a chain reaction situation. We do not agree.

Our UM statute, § 632.32(4)(a)2b, Stats., requires that uninsured motorist provisions include coverage for "[a]n unidentified motor vehicle involved in a hit- and-run accident." Smith argues that this statutory language is broad enough to apply to the chain reaction accident here. We rejected a similar argument in Wegner v. Heritage Mut. Ins. Co., 173 Wis. 2d 118, 496 N.W.2d 140 (Ct. App. 1992). We reasoned that, for an uninsured motorist provision to apply, there must have been physical contact between the hit-and-run vehicle and the insured's vehicle. See id. at 126-27, 496 N.W.2d at 144. We noted that such a requirement was [416]*416consistent with Amidzich and Hayne v. Progressive Northern Ins. Co., 115 Wis. 2d 68, 339 N.W.2d 588 (1983), and preserved "the justification for the physical contact requirement, i.e., the prevention of fraudulent claims." Wegner, 173 Wis. 2d at 127, 496 N.W.2d at 144.

These three cases, Amidzich, Hayne, and Wegner control the issue presented here. In Amidzich, an unidentified driver forced the plaintiff off the road, but there was no contact between the vehicles. See 44 Wis. 2d at 48, 170 N.W.2d at 814. Our supreme court found that this situation did not trigger UM coverage under the hit-and-run definition because the unidentified vehicle did not actually have contact with the plaintiff s vehicle. See id. at 51, 170 N.W.2d at 816. In Hayne, the plaintiff, after swerving to avoid an oncoming vehicle, lost control of his vehicle and it overturned. See 115 Wis. 2d at 69, 339 N.W.2d at 588. Our supreme court again held that, absent the physical contact between the hit-and-run vehicle and the plaintiffs vehicle, no UM coverage is triggered. See id. at 74, 339 N.W.2d at 590-91. In Wegner, a car swerved into the path of a van, and the van, attempting to avoid the car, swerved into the path of the plaintiffs' car. See 173 Wis. 2d at 121, 496 N.W.2d at 141. The plaintiffs were forced off the highway, where they struck a railroad-crossing tower. See id. Neither vehicle stopped to assist the plaintiffs. See id. It was undisputed that the first car had not struck either the van or the plaintiffs, but it was disputed as to whether the van struck the plaintiffs. See id. We concluded that, even in this factual scenario, UM coverage was not mandated by the statute because there was no contact between the "initiating vehicle" and the vehicle of the driver who [417]*417was seeking to invoke UM coverage. See id. at 127, 496 N.W.2d at 144.

Here, Smith claims that because the complaint alleges that the hit-and-run vehicle struck the truck, which forced the truck into his lane striking the car he was driving, this case presents a scenario distinguishable from the line of cases discussed above. Although the instant case presents a slight variation in that it is alleged that the initiating vehicle did hit the truck, whereas in Wegner, the initiating vehicle did not come into physical contact with the van, we are not convinced that this case compels a conclusion different from Wegner. In Wegner, we restated the long-standing position in Wisconsin that "hit-and-run," as used in § 632.32(4)(a)2b, Stats., "is unambiguous and, according to its common and approved usage, requires an actual physical striking." Wegner, 173 Wis. 2d at 125, 496 N.W.2d at 143. Given the facts of Wegner,

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Smith v. General Casualty Insurance
601 N.W.2d 844 (Court of Appeals of Wisconsin, 1999)

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601 N.W.2d 844, 230 Wis. 2d 411, 1999 Wisc. App. LEXIS 976, Counsel Stack Legal Research, https://law.counselstack.com/opinion/smith-v-general-casualty-insurance-wisctapp-1999.