State Automobile Mutual Insurance v. Rowe

502 N.E.2d 1008, 28 Ohio St. 3d 143, 28 Ohio B. 238, 1986 Ohio LEXIS 813

• Court: Ohio Supreme Court
• Decided: December 24, 1986
• Docket: No. 85-2000
• Status: Published

Opinions

Douglas, J.

The initial issue presented in this case is whether an uninsured motorist liability policy clause that requires “physical contact” between the insured or the vehicle occupied by him and the vehicle of an unidentified motorist, as a condition of coverage, abrogates R.C. 3937.18 or contravenes public policy. We hold that it does not.

R.C. 3937.18 provides, in pertinent part:

“(A) No automobile * * * policy of insurance * * * shall be * * * issued for delivery in this state with respect to any motor vehicle registered * * * in this state unless both of the following are provided:

“(1) Uninsured motorist coverage * * *.

“(2) Underinsured motorist coverage * * *."

The uninsured motorist policy provisions provided coverage for insureds who suffer injury caused by motorists without insurance.- The policy also provided coverage where the offending vehicle was unidentified providing there was actual physical contact with the insured or the automobile the insured was occupying.

Given a literal reading, the terms of R.C. 3937.18 mandate only that coverage be extended for injuries caused by identified uninsured (and underinsured) motorists. While public policy may require that insurers provide coverage to insureds who are injured by hit-and-run motorists, R.C. 3937.18 does not require coverage for injuries caused by unidentified motorists. Therefore, because the insurance policy in this case provided, in addition to the basic mandated uninsured coverage, coverage for injuries caused by an unidentified motorist, the policy actually provided more protection than that required by statute. The “physical contact” limitation set forth in the hit-and-run clause is, therefore, neither a violation of R.C. 3937.18 nor of public policy.

Accordingly, we are constrained to follow this court’s holding in Reddick, supra, where we specifically held:

“An uninsured motorist provision of an automobile liability insurance policy which provides protection to one injured by a ‘hit-and-run’ automobile, but which restricts coverage to accidents where the injury results from physical contact of the unidentified vehicle with the insured or the automobile occupied by him, is compatible with R.C. 3937.18 and the public policy evidenced by its adoption.” See, also, Yurista, supra.

Appellants argue, in the alternative, that an insured who is caused injury by an unidentified motorist, but is precluded from recovering under the “hit-and-run” clause because there was no physical contact with the unidentified motorist’s vehicle, can recover under the uninsured automobile definitional clause (a) in the policy. In applying a plain-meaning interpretation to the words used in this policy, it is evident that clause (a) was intended to apply only to identified, uninsured motorists. The contract between the parties simply does not insure against injuries caused by unidentified motorists in the absence of physical contact. To read such coverage into this policy would require us to rewrite the contract of the parties and this we are not permitted or prepared to do. See Hedrick v. Motorists Mut. Ins. Co. (1986), 22 Ohio St. 3d 42, 44. Thus, an automobile liability insurance policy which provides coverage against injuries caused to an insured by an unidentified motorist may, consistent with R.C. 3937.18 and public policy, include a provision requiring actual physical contact between the insured or the vehicle occupied by him and the unidentified vehicle. Travelers Indemnity Co. v. Reddick, supra, is approved and followed.

Accordingly, we conclude that appellants cannot recover under these uninsured motorist policy definitional clauses because the injury was not caused by an identified uninsured motorist nor was there any physical contact between the insureds or the vehicle they were occupying and the vehicle of an unidentified motorist.

The judgment of the court of appeals is affirmed.

Judgment affirmed.

Celebrezze, C.J., Locher, Holmes and Wright, JJ., concur. Sweeney and C. Brown, JJ., dissent.