Clark v. Regent Insurance Co.

TICE, Circuit Judge

(dissenting).

I respectfully dissent from the majority opinion.

Appellant has urged and the majority of this court has accepted that the term “hit- and-run” has some other meaning, such as “cause-and-run”, and does NOT require physical contact. I am forced, therefore, to dissent from this decision.

SDCL 58-11-9 deals with coverage for bodily injury or death as a result of an accident involving an uninsured motor vehicle, including a hit-and-run vehicle. Under this statute the insured has a CHOICE of accepting or rejecting the “uninsured motorist” provision in the insurance contract. The insured purchasing this type of protection is entitled to receive just what he bargained for — nothing more nor less. This uninsured motorist statute in one form or another has been.on the statute books in South Dakota since 1966 and was last amended in 1975. If the legislature believed or anticipated that it was necessary to exclude physical contact as a requirement for unidentified vehicles to be covered under the uninsured motorist statute, they have had ample opportunity to amend the law and have not seen fit to do so. This is true despite the fact that insurance contract provisions similar to that in the instant case have long been utilized. This is a matter for the legislature and not a matter for this court to legislate.

The pertinent sections of the insurance policies concerned herein state that: “A hit-and-run vehicle . . means a highway vehicle which causes bodily injury to an insured arising out of physical contact of such vehicle with the insured or with an automobile which the insured is occupying at the time of the accident . . . (Emphasis added.)

Appellant’s chief contention is that the “physical contact” provision of the policies is in contravention of the South Dakota uninsured motorist law and the public policy behind such law. As noted above, however, SDCL 58-11-9 clearly refers to “hit- and-run” not “cause-and-run” or any other such phrase. The statute leaves no question that there may be recovery under the uninsured motorist provisions of an insurance policy if there is a “hit-and-run” vehicle involved. When the insurance contract is clear and reasonable and does not conflict with this statute or any other, there is no room for judicial construction. Rather, the ordinary rules of contract and of statutory construction must apply. We must give plain and definite meaning to the contract terms and not interpolate or superimpose provision and limitations which are not contained therein. If the terms we are considering here were ambiguous, unclear or uncertain, then we would have to construe them in the manner most favorable to the insured, but such is not the case before us. The words “hit-and-run” and “physical contact” are not only words of common and everyday meaning, but are contract terms stated in clear, coherent and unambiguous English. Amidzich v. Charter Oak Fire Insurance Co., 44 Wis.2d 45 , 170 N.W.2d 813 (1969).

Like provisions in insurance contracts under virtually identical statutes have been upheld in other jurisdictions as pointed out in footnote 3 of the majority’s opinion. In Prosk v. Allstate Ins. Co., 82 Ill.App.2d 457 , 226 N.E.2d 498 (1967), for example, the court concluded that the policy language and the statutes were compatible and the statutory language so clear and unambiguous that legislative intent could be ascertained without resort to other aids for construction.

The Nebraska Court in Grace v. State Farm Mutual Automobile Ins. Co., 197 Neb. 118 , 246 N.W.2d 874 (1976), held that it was reasonable to require physical contact based on the premise that such a requirement *33 precludes fraud upon the insurer. Courts universally agree that the prevention of fraud is a permissible and justifiable legislative purpose. It need only be said that a requirement of physical contact attempts to prevent fraudulent claims by requiring of the claimant tangible proof of a collision with a hit-and-run vehicle. That requirement defines and limits the risk of insurers so that fulfillment of the liberal aims of the law is not incompatible with the economic realities of insurance coverage. Ely v. State Farm Mutual Automobile Insurance Co., 148 Ind.App. 586 , 268 N.E.2d 316 (1971); and Prosk, supra.

A requirement in an automobile insurance policy that there be physical contact of a hit-and-run vehicle with the insured vehicle as a condition precedent to the assertion of a claim under the hit-and-run clause of the uninsured motorist provision is valid and reasonable. It is not a limitation or restriction on the insurance coverage required by SDCL 58-11-9 nor is it in conflict with the beneficial public policy of that statute. The term “hit-and-run” means exactly what it says and cannot be translated into “cause-and-run” where clear statutory and contract terms are involved and require physical contact.

I would affirm the trial court.

I am authorized to state that Chief Justice DUNN joins in this dissent.