Courts and Coverage
Interpreting the "Physical Contact" Requirement of Uninsured Motorist Coverage in Indirect Contact Cases
Brent Cooper | February 1, 2007
Footnotes
1 Dana Harbin contributed to this article. She is an attorney in the Dallas office of Cooper & Scully, P.C. where she specializes in insurance coverage and bad faith involving all types of insurance policies, both first and third party. Ms. Harbin earned her BA degree from the University of Texas in Arlington and her JD degree from the University of Texas at Austin.
2 Wold v. Progressive Preferred Ins., 52 P.3d 155 (Alaska 2002); State Farm Mut. Auto. Ins. v. Henderson, 150 S.W.3d 276 (Ark. 2004); Hammon v. Farmers Ins. Co. of Idaho, 707 P.2d 397 (Idaho 1985); Rice v. Meridian Ins., 751 N.E.2d 685 (Ind. App. 2001) (enforcing an insurer's physical-contact requirement in hit-and-run cases); Walker v. Employers Ins. of Wausau, 846 N.E.2d 1098 (Ind. App. 2006) (Phrase "hit-and-run auto" required physical contact with the insured vehicle, but that contact could occur when an unidentified vehicle struck object impelling it to strike the insured vehicle and a substantial nexus between the unidentified vehicle and the intermediate object was established as that term was used in uninsured motorist provision of employer's general liability insurance policy defining an "uninsured auto" as an auto with no liability policy in effect at the time of the accident providing coverage equal to the state's limit of financial responsibility or a "hit-and-run auto."); Ex rel. Moritz v. Farm Bureau Mut. Ins., 434 N.W.2d 624 (Iowa 1989); Burton v. Farm Bureau Ins., 116 S.W.3d 475 (Ky. 2003); Shelter Mut. Ins. v. Arnold, 169 S.W.3d 855 (Ky. 2005); Autry v. Nationwide General Ins., 948 F. Supp. 615 (S.D. Miss. 1996) (holding that there was no coverage in a case where an unidentified vehicle caused the claimant's child to fall from his bike because there was no physical contact between the child and the vehicle); Utica Mut. Ins. Co. v. Leconte, 3 A.D.3d 534 (N.Y. App. Div. 2004).
3 Alaska Stat. § 28.20.445(f); Ariz. Rev. Stat. § 20-259.01(M); Cal. Ins. Code § 11580.2(b)(1); Ga. Code Ann. § 33-7-11(b)(2); 215 Ill. Comp. Stat. 5/143a(2)(i); Iowa Code § 516A.1; Kan. Stat. Ann. § 40-284(e)(3); La. Rev. Stat. Ann. § 22:680(1)(d)(i); Mich. Comp. Laws § 257.1112; Miss. Code Ann. § 83-11-103(c)(v); Neb. Rev. Stat. § 44-6405(3); Nev. Rev. Stat. 690B.020(3)(f)(1); N.Y. Ins. Law § 5217; N.C. Gen. Stat. § 20-279.21(b)(3)(b); N.D. Cent. Code § 26.1-40-15.1; Or. Rev. Stat. § 742.504(2)(f); S.C. Code Ann. § 38-77-170(2); Tenn. Code Ann. § 56-7-1201(e)(1)(A); Tex. Ins. Code art. 5.06-1(2)(d); Utah Code Ann. § 31A-22-305(5); Va. Code Ann. § 38.2-2206(D); Wash. Rev. Code § 48.22.030(8); W. Va. Code § 33-6-31(e)(iii); Wis. Stat. § 632.32(4)(a)(2)(b).
4 See Ga. Code Ann. § 33-7-11(b)(2); 215 Ill. Comp. Stat. 5/143a(2)(i); La. Rev. Stat. Ann. § 22:680(1)(d)(i); Miss. Code Ann. § 83-11-103(c)(v); Neb. Rev. Stat. § 44-6405(3); N.D. Cent. Code § 26.1-40-15.1; Tenn. Code Ann. § 56-7-1201(e)(1)(A); Tex. Ins. Code art. 5.06-1(2)(d).
5 Bauer v. Government Employees Ins., 61 F. Supp. 2d 514 (E.D. La.1999) (applying Mississippi law); Smith v. General Cas. Ins., 619 N.W.2d 882 (Wis. 2000); Berry v. State Farm Mut. Auto. Ins., 556 N.W.2d 207 (Mich. App. 1996); Johnson v. N.C. Farm Bureau Ins., 436 S.E.2d 265 (N.C. App. 1993); Interboro Mut. Ins. v. Devone, 189 Misc. 2d 605 (N.Y. Sup. Ct. 2001). But see Kannel v. State Farm Mut. Auto. Ins., 584 N.E.2d 540 (Ill. App. 1991) (holding that the physical contact requirement intended to prevent fraud, even though there was no risk of fraud in the present case because the parties stipulated to the existence of the unidentified vehicle).
6 Dunn v. Doe, 527 S.E.2d 795 (W. Va. 1999) (using the rule that independent third-party testimony by disinterested individuals is required to show that the negligence of an unidentified vehicle was a proximate cause of the accident, in an effort to eliminate fraud and collusion); To v. State Farm Mut. Ins., 873 P.2d 1072 (Or. 1994); Miller v. Doe, 441 S.E.2d 319 (S.C. 1994); Jackson v. State Farm Mut. Auto. Ins., 665 So. 2d 661 (La. App. 1995); Atlanta Cas. Ins. v. Crews, 397 S.E.2d 466 (Ga. App. 1990) (ruling that the state statute requiring a corroborating eyewitness in hit-and-run cases does not require that the witness be a disinterested party); Gobin v. Allstate Ins., 773 P.2d 131 (Wash. App. 1989).
7 Smith v. General Cas. Ins., 619 N.W.2d 882 (Wis. 2000); Dunn v. Doe, 527 S.E.2d 795 (W.Va. 1999) (holding that evidence from an independent third-party that an unknown hit-and-run driver set in motion a sequence of events leading to an injury allows the claimant's claim to go forward despite the lack of actual physical contact); Girgis v. State Farm Mut. Auto. Ins., 662 N.E.2d 280 (Ohio 1996) (holding that the corroborative evidence test should be used to allow the claimant to go forward if there is an "independent third-party testimony that the negligence of an unidentified vehicle was a proximate cause of the accident"); Papa v. Mississippi Farm Bureau Cas. Ins., 573 So. 2d 761 (Miss. 1990) (holding that a pedestrian, who was injured when he jumped off a bridge to avoid being hit by vehicle driven by uninsured motorist, was entitled to UM benefits because the negligent driver proximately caused his injuries); Franklin v. Devore, 489 S.E.2d 651 (S.C. App. 1997) (holding that the statutory physical contact requirement was satisfied when an unknown vehicle caused defendant to swerve and hit the plaintiff's vehicle).
8 Walker v. GuideOne Specialty Mut. Ins., 834 So. 2d 769 (Ala. 2002); Keystone Ins. v. Raffile, 622 A.2d 564 (Conn. 1993) ("We see no reason why the traditional tests of credibility, testimony under oath and cross-examination, coupled with the claimant's burden of proof, are insufficient to provide protection against fraudulent claims."); Mavashev v. Windsor Ins., 72 P.3d 469 (Colo. App. 2003); Kramer v. Insurance Co. of N. Am., 54 S.W.3d 613 (Mo. App. 2001); Massa v. South Heritage Ins. Co., 697 So. 2d 868 (Fla. App. 1997).
9 Demir v. Farmers Texas County Mut. Ins., 140 P.3d 1111 (N.M. App. 2006) (physical contact exclusion violated New Mexico's public policy for uninsured motorist coverage to protect innocent accident victims); Lowing v. Allstate Ins., 859 P.2d 724 (Ariz. 1993); Buchanan v. Doe, 431 S.E.2d 289 (Va. 1993) (holding that state law does not require physical contact but rather prompt reporting to police, to prevent fraud in hit-and-run cases); Streitweiser v. Middlesex Mut. Assur., 593 A.2d 498 (Conn. 1991) (noting that a majority of states agree that a physical contact requirement is at least in part, an "unjustifiable deviation" from the goals of uninsured motorist laws); Lanzo v. State Farm Mut. Auto. Ins., 524 A.2d 47, 50 (Me. 1987); Veloski v. State Farm Mut. Auto Ins., 719 N.E.2d 574 (Ohio App. 1998).
10 Smith v. General Cas. Ins., 619 N.W.2d 882 (Wis. 2000); Dunn v. Doe, 527 S.E.2d 795 (W.Va. 1999) (holding that the required "close and substantial physical nexus" between the hit-and-run vehicle and the claimant's vehicle was satisfied when a third party took an evasive action to avoid hitting the unknown vehicle and instead, hit the claimant's vehicle); Will v. Meridian Ins. Group, Inc., 776 N.E.2d 1233 (Ind. App. 2002) (sufficient contact is established when an insured's vehicle collides with a load of debris which has fallen from an unidentified vehicle if the collision occurred as part of "a continuous sequence of events that clearly began with a load of debris falling from an unidentified vehicle and ended in [the insured's] contact with the pile of debris."); Anderson v. State Farm Mut. Auto. Ins., 652 P.2d 537 (Ariz. 1982); Allstate Ins. Co. v. Basdeo, 273 A.D.2d 466 (N.Y. App. Div. 2000); Franklin v. Devore, 489 S.E.2d 651 (S.C. App. 1997); Berry v. State Farm Mut. Auto. Ins., 556 N.W.2d 207 (Mich. App. 1996); McNeil v. Hartford Acc. & Indem., 352 S.E.2d 915 (N.C. App. 1987); Progressive Cas. Ins. v. Mastin, 446 N.E.2d 817 (Ohio App. 1982). But see Belcher v. Travelers Indem., 740 S.W.2d 952 (Ky. 1987) (holding there was no coverage where claimant was injured as a result of a chain-reaction accident allegedly caused by an unknown vehicle).
11 See Thi Pham v. Allstate Ins., 254 Cal. Rptr. 152 (Cal. App. 1988); State Farm Fire & Cas. v. Guest, 417 S.E.2d 419 (Ga. App. 1992); Ill. Natl. Ins. v. Palmer, 452 N.E.2d 707 (Ill. App. 1983); Brooks v. State Farm Mut. Automobile Ins., 855 So. 2d 419 (La. App. 2003) 855 So. 2d 419 (La. App. 2003); Adams v. Zajac, 313 N.W.2d 347 (Mich. App. 1981); State Farm Bureau Cas. Ins. v. Brewer, 507 So. 2d 369 (Miss. 1987); Allstate Ins. v. Killakey, 580 N.E.2d 399 (N.Y. 1991); Barfield v. Insurance Co. of N. Am., 443 S.W.2d 482, 486 (Tenn. App. 1968); Theis v. Midwest Sec. Ins., 606 N.W.2d 162 (Wis. 2000).
12 See Thi Pham, 206 Cal. App.3d at 1196-97 ("uninterrupted chain" with "no intervening force to break the chain of causation"); Palmer, 452 N.E.2d at 708 ("continuous and contemporaneously transmitted force"); Brooks, 855 So. 2d at 423-24 ("unbroken chain of events"); Brewer, 507 So. 2d at 372 ("unbroken chain of events"); Adams, 313 N.W.2d at 349 ("continuous and contemporaneously transmitted force"); Killakey, 580 N.E.2d at 401 ("unbroken chain of events").
13 See Barfield, 443 S.W.2d at 486 (requiring coverage "when a wheel of one vehicle hurls an object, such as a stone, into and against another vehicle"); Theis, 606 N.W.2d at 164, 167-68 (requiring coverage when leaf spring "was propelled into the plaintiff's vehicle by the passing semitractor").
14 See Guest, 417 S.E.2d at 422 (requiring coverage when insured vehicle struck tire assembly which "was negligently attached to an unknown vehicle from which it fell and left in the roadway").
15 Alaska, Arizona, Iowa, Kansas, Nebraska, Nevada, Oregon, Utah, and Virginia.
16 See Kern v. Nev. Ins. Guar. Assn., 856 P.2d 1390 (Nev. 1993).
17 See Davis v. Doe, 331 S.E.2d 352 (S.C. 1985).
18 See, for example, Tex. Farmers Ins. v. Deville, 988 S.W.2d 331 (Tex. App. 1999, no pet.); Republic Ins. v. Stoker, 867 S.W.2d 74 (Tex. App. 1993), rev'd on other grounds, 903 S.W.2d 338 (Tex. 1995); Williams v. Allstate Ins., 849 S.W.2d 859 (Tex. App. 1993, no writ).
19 See Guest, 417 S.E.2d at 422; Palmer, 452 N.E.2d at 708-09; Brooks, 855 So. 2d at 423-25; Brewer, 507 So. 2d at 371-72; Barfield, 443 S.W.2d at 486.
20 Kern v. Nevada Ins. Guar. Ass'n ex rel. Azstar Cas., 856 P.2d 1390 (Nev. 1993) (holding that the physical-contact requirement was not met where the claimant could not show that another vehicle left the mysterious slippery substance on the roadway that led to the accident); Allstate Ins. v. Killakey, 580 N.E.2d 399 (N.Y. 1991) (ruling that physical contact occurs "when the accident originates in collision with an unidentified vehicle, or an integral part of an unidentified vehicle" and that the claimant must prove that the "detached part, in an unbroken chain of events, caused the accident"); Government Employees Ins. v. Yarmoluk, 692 N.Y.S.2d 433 (N.Y. App. Div. 1999) (holding that the claimant failed to show that there was physical contact with a detached muffler from an uninsured motor vehicle where there was not witness to the muffler falling off vehicle and no proof as to how long the muffle had been on the road); Ackles v. Hartford Underwriters Ins., 699 N.E.2d 740 (Ind. App. 1998) (holding that the disinterested witness's testimony, if accepted by the trier of fact, established a "substantial physical nexus" between the unidentified vehicle and the fiberglass that hit the claimant's vehicle, and there is no evidence of fraud or collusion between the witness and the claimant); Williams v. Allstate Ins., 849 S.W.2d 859 (Tex. App. 1993); Pham v. Allstate Ins., 206 Cal. App. 3d 1193 (1988) (holding that there was physical contact between a hit-and-run vehicle and the claimant's vehicle when a rock fell off a passing unidentified dump truck, bounced once on the road and then smashed through the claimant's windshield); Yutkin v. U.S. Fidelity & Guar., 497 N.E.2d 471 (Ill. App. 1986). But see Masler v. State Farm Mut. Auto. Ins., 894 S.W.2d 633 (Ky. 1995) (holding that UM coverage did not extend to a situation where an unidentified vehicle passed the claimant's vehicle, throwing a rock through the claimant's windshield); Dehnel v. State Farm Mut. Auto. Ins., 604 N.W.2d 575 (Wis. App. 1999); State Farm Fire & Cas. v. Guest, 417 S.E.2d 419 (Ga. 1992) (holding there was no coverage where the claimant hit a tire assembly because the car pieces were not a motor vehicle pursuant to the state uninsured motorist statute).
For a claimant to be entitled to uninsured motorist benefits in a hit-and-run accident, physical contact between an unidentified vehicle or object from an unidentified vehicle and the claimant's vehicle or body is required in most jurisdictions. 1
The physical contact requirement has been approved by several states as part of the insurance policy language. 2 At least 24 states have adopted such a requirement via state statute. 3 Seven of those states require "actual" physical contact by statute. 4
The purpose of the "physical contact" requirement is to prevent fraudulent claims where there was no other vehicle involved in the accident. 5 Some of these states allow coverage without physical contact if there is independent corroborative evidence of the cause of the accident. 6 In some cases, constructive contact or a showing that the hit-and-run vehicle was the proximate cause of the accident will suffice. 7
Other jurisdictions have held that requiring claimants in "miss-and-run" cases to corroborate facts with competent testimony other than their own testimony violates public policy. 8 Still, other jurisdictions find that a physical contact requirement altogether in uninsured motorist coverage is in violation of public policy. 9
A prevalent issue that arises in states that have adopted a physical contact rule is to what extent is the requisite contact established. For example, is there uninsured motorist coverage when damage is caused by cargo falling from an uninsured vehicle? Is there uninsured motorist coverage when a wheel flies off of a tractor-trailer and causes a chain reaction of damages down a freeway?
The physical contact requirement is satisfied in some jurisdictions when the hit-and-run driver sets in motion a chain reaction; namely, an unbroken sequence of events with a definable beginning and end, that causes the claimant's injury. 10 Nine states have expressly held that the requisite contact occurs when an "integral part" of an unidentified vehicle, cargo dropped from an unidentified vehicle, or an object propelled by the tire of an unidentified vehicle collides with the insured vehicle. 11 Of these nine states, six have expressly referenced a requirement of temporal proximity for coverage. 12 Two others involved scenarios in which temporal proximity was present. 13 In only one of the nine states was there no reference to temporal proximity. 14
Nine states 15 have not addressed this particular issue relating to contact with an "integral part," although the Nevada Supreme Court has concluded that an accident caused by oil purportedly spilled on the highway by an unknown vehicle is not covered. 16 However, that court did suggest that coverage may be required for a "collision between an uninsured/hit-and-run driver or automobile (or an integral part of the automobile)" and an insured's vehicle. Only South Carolina has expressly rejected coverage when "an integral part" of an unidentified vehicle (a wheel bearing) struck the insured vehicle. 17
Like several states, Texas has a statutory physical contact requirement. However, unlike many states, that requirement is "actual" physical contact. Texas appellate courts have uniformly concluded that no uninsured motorist coverage is available where a collision occurs with cargo which has fallen from a vehicle the owner of which is unknown because such collision does not meet the physical contact requirement. 18 Also, the San Antonio Court concluded that the requisite contact did not occur in a case involving a collision between an insured's vehicle and a loading ramp of a semitrailer which had detached from the trailer immediately before colliding with the insured's vehicle. See Smith v. Nationwide Mut. Ins., 2003 WL 21391534 at **2-3 (Tex. App. June 18, 2003, pet. denied) (mem. op.). This is an unpublished Texas decision on the issue of whether uninsured motorist coverage should be provided when an integral part of an unidentified vehicle collides with an insured's vehicle. The court's conclusion was premised on the fact that the ramp was not a trailer or a motor vehicle and therefore did not fall within the uninsured motorist coverage provided only if a "land motor vehicle or trailer" is involved.
However, in Elchehimi v. Nationwide Ins., 183 S.W.3d 833 (Tex. App. 2005), petition for rev. filed (Mar. 15, 2006), one Texas appellate court questioned whether injuries caused to the insured when his car was struck by an axle and tractor driving in the opposite direction on a highway were covered under the insured's uninsured motorist policy. The court adopted the rule that when integral part of an unidentified vehicle collides with an insured's vehicle as a "result of an unbroken chain of events with a clearly definable beginning and ending, occurring in a continuous sequence," then the requisite "actual physical contact" has occurred and coverage is required. However, the court remanded the matter to the trial court on the basis of a fact issue as to whether a set of wheels with the axle attached from a tractor-trailer was an integral part of an unindentified vehicle that collided with the insured's car as a result of an unbroken chain of events with a clearly definable beginning and ending occurring in a continuous sequence.
Five of the other states that have statutory "actual" physical contact requirements also find uninsured motorist coverage exists when an integral part of the uninsured vehicle contacts the insured's vehicle. 19 Other courts require evidence of some causal connection with the unknown vehicle in accidents where the claimant's vehicle comes in contact with a detached piece of the unknown vehicle. 20
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