Clark v. Regent Insurance Co.
270 N.W.2d 26
S.D.
1978
Check Treatment

*1 CLARK, Appellant, Plaintiff Joni M. COMPANY, and

REGENT INSURANCE Company,

Milbank Mutual Doe, unidentified driver

and John vehicle, motor Defend-

an unidentified Respondents.

ants and 12207.

No. Dakota.

Supreme Court South

Argued March Sept.

Decided Schmidt, Schroyer

Ronald G. Schmidt Colwill, Pierre, plaintiff appel- lant. *2 an unidentified motor vehicle driven Riter, & with Mayer, Hofer Hofer of Robert D. driver, travelling in the by an unidentified respondent and Pierre,

Riter, for defendant direction. opposite Mut. Ins. Co. Milbank proximity in The incident occurred close Fuller, Woods, of J. Nimick Timothy highway, to a curve the and Peterson’s Falls, for defendant Smith, Sioux Shultz her vehicle to leave evasive action caused Regent Ins. Co. respondent and plaintiff roll. The was highway the and injured; proximate the cause of seriously reassignment). ZASTROW, (on Justice injuries being negligence her the of the circuit court the appeal from This is an failing keep unidentified driver in to his to the de- declaratory judgment a granting lane proper vehicle in the of travel on the served plaintiff the Originally, fendants. to the highway, according stipulation. com- and a summons upon the defendants was a named insured under plaintiff The the against brought this action and plaint Regent Company (Regent) the uninsured mo- the insurers under defendant Clark, issued to John and was like- policy in- certain automobile of torist by the Milbank Mutual Insur- wise covered Upon defendants. of the policies surance (Milbank) to policy issued court the trial application, plaintiff’s by required Peterson. As Connie by publication for service its order entered 58-11-9,1 provided uninsured policy each defendant, the unidentified Doe, on John to coverage applicable motorist which is vehicle. motor However, unidentified of an vehicles.” driver “hit-and-run motor duly policy served contains a definition of a hit- companies each insurance The which is not contained in and-run vehicle parties The complaint. to the filed answers the statute. facts, stipulation of filed a into and entered the unidentified including the default Regent policy provides the defini- The court issue the trial driver, praying tion: pursuant to SDCL judgment, declaratory automobile’ means an ‘[H]it-and-run rights and status 21-24, declaring the bodily injury which causes to automobile contracts at the insurance parties arising out of an insured declaratory court issued The trial issue. with the of such automobile insured defendants, from in favor of is

judgment with an automobile which the insured accident, We reverse. appeals. occupying at the time of plaintiff which the facts, on According stipulation to the policy provides Milbank a similar Clark, M. plaintiff, Joni

June definition: a vehicle owned passenger was a a highway vehicle’ means The Peter- Peterson. by Connie operated ‘[H]it-and-run bodily injury to an vehicle which causes westerly travelling in was son vehicle contact of arising insured out 14-A in Law- Highway on U. S. direction with the insured or with an such vehicle Dakota, between County, South rence occupy- automobile which insured is The Peter- Sturgis and Deadwood. cities of * * accident, time of the *. ing at the right lane travelling in the was vehicle son to states insurance carriers fifty swerve All traffic and was forced coverage uninsured motorist provide collision to avoid a head-on in order to right bodily injury set forth in 32- provides: § for or death 1. SDCL 58-11-9 35-70, by requested insured in limits or if resulting insuring against loss “No by exceeding coverage provided bodily inju- liability imposed law for from death, injury bodily for for by any person arising ry suffered or death persons protection of insured thereunder ownership, or use of maintenance out of the damages legally to recover who are entitled or issued shall be delivered a motor vehicle operators of uninsured motor from owners or any respect delivery with in this state vehicles be- and hit-and-run motor vehicles principally ga- registered or motor raged disease, bodily injury, sickness or cause of including provid- in this state unless death, resulting therefrom.” supplemental in limits thereto ed therein or liability insurance automobile rationale for the every with contact re- quirement option mandatory policies or a in automobile insurance policy either as prevent claims, is to However, fraudulent ostensibly three there are differ- provision. by providing objective evidence that a van- types of uninsured motorist statutes. ent ishing motorist had in fact been involved in prevalent variety most re- The first and *3 the accident. theory upheld This has been only “uninsured motor- quires coverage twenty states as a reasonable require- ists”, the term. The does not define but proper ment and a provision contract coverage for “hit-and- type second includes the uninsured motorist statutes.3 7 See vehicles” in the uninsured motorist run Am.Jur.2d, Automobile Insurance 136.5 § statutes, term, g., but does not define the e. (Supp.); Anno. 25 A.L.R.3d 1299. Finally, there are 58-11-9. those statutorily define “hit-and- states which However, jurisdictions twelve have re- vehicle” to contact run jected contact vehicle and the uniden- between the insured contained in the standard form defi- tified vehicle.2 nition of a “hit-and-run vehicle.”4 These Collins, (Mo. 2. See “The Uninsured Motorist Statute Missouri: Ward v. Allstate Co. Vehicle,” 576; 1974) the Phantom Insurance Counsel 514 S.W.2d Journal, 1976, 358; Comment, July p. Creigh- v. State Farm Mutual Grace Nebraska: Review, 11, p. ton Law Vol. 222. (1976) Ins. Co. 197 Automobile 118, 874; Neb. 246 N.W.2d New York: Smith v. Great American In- v. Aetna & Sur. Arizona: Gardner Cas. Company (1971) surance 29 N. 123, (1977) Co. 114 Ariz. 559 116, 15, Y.2d 324 N.Y.S. 272 679; P.2d 528; N.E.2d Ward v. Consolidated Under- Arkansas: No. (1976) Ark., Carolina: writers 535 S.W.2d Hendricks v. United States Fi- 830; delity Guaranty & (1969) Co. N.C.App. 181, 5 167 S.E.2d Rosnick v. Aetna Cas. & Sur. Connecticut: 876; 416, (1977) Co. 172 Conn. 374 1076; A.2d Buckeye Ohio: Coop- Union Ins. Co. v. (1972) erman App.2d 33 Ohio Georgia: State Farm Mutual Automobile 152, 62 0.0.2d (1973) 293 N.E. Ins. Co. v. Carlson 130 293; 2d 213; Ga.App. 202 S.E.2d (1967) Illinois: Prosk Allstate Ins. Co. Spaulding So. Carolina: v. State Farm Mu- Ill.App.2d 82 226 N.E.2d (1974) tual Insurance Co. 262 498; 653; S.C. 202 S.E.2d Ely Indiana: v. State Farm Mutual Auto- Tennessee: Smith v. Allstate Insurance (1971) mobile Insurance Co. Company (1970) 224 Tenn. Ind.App. 268 N.E.2d 654; 456 S.W.2d 316; City Phelps v. Twin Fire Insur- Texas: Kentucky: (Ky.1977) Jett v. John Doe Company (Tex.Civ.App. 221; S.W.2d 419; 1972)476 S.W.2d Louisiana: Collins v. New Orleans Pub. Wisconsin: Amidzich v. Charter Oak Fire (La.App.1970) Ser. Inc. 234 So. (1969) Insurance Co. 44 Wis.2d 270; 2d 45,170 N.W.2d 813. Michigan: Mutual Insurance Com- Citizens (1971) pany v. Jenks 37 Mich. 728; App. 194 N.W.2d Alabama: Casualty State Farm Fire & Company (1973) v. Lambert Marine St. Paul Fire & Lener v. Minnesota: 645,285 So.2d917; Ala. Minn., (1978) N.W. Ins. Co. (applying Wisconsin 2d Exchange Colorado: Farmers Insurance law); (1974) Colo.App. McDermott 527 P.2d Surety Casualty Com- Mississippi: Aetna 1970) (Miss. Delaware: pany Abramowicz v. v. Head State Farm (Del.Super. Mut. Auto. Ins. Co. So.2d premise valid, contact upon clause are based it would also decisions elimi- require- nate any hope is recovery clearly cases are a violation ment and involving another negligent motorist who purpose general public has avoided liability by getting away. these We find motorist statutes. uninsured This latter situation surely within the logi- persuasive and a more recent decisions contemplation of the Uninsured Motorist prob- vehicle” “phantom to the approach cal Act, Coverage and the possibility of fraud lem. can mitigated by the burden proof placed motor the uninsured on purpose of the claimant. the same insurance provide is to statutes ist Supreme Hawaii Court in DeMello v. is in party who insured protection First Insurance Hawaii, Ltd. motorist unknown jured uninsured by an 55 Haw. P.2d found him had available to have been that would *4 the adversary process sufficient to elimi- negli result of the injured as a he been nate claims, fraudulent stating: mini by the a covered of motorist gence To liability insurance.5 of mum amount This court has held that the fear of a of the purpose, that accomplish flood of fraudulent claims justify cannot are con statutes motorist the uninsured judicial the deprivation of plaintiff’s a coverage.6 of liberally in favor strued right bring an independent action physical that the respondents argue The tort, genuineness because the of the claim prevent necessary to requirement is contact can be adequately by tested the mecha- decisions claims. The fraudulent nisms of our adversary process, [citation with adequately dealt courts other is not to forgotten be omitted] [I]t that v. Unit- reasoning. In Webb such fallacy of * * plaintiff carries the proof. burden of 1974, Ass’n, 227 Pa. Automobile ed Services here hold physical that the [W]e impact 743, 737, court 508, 520, the 323 A.2d Super. requirement cannot by be used defend- explained: ant-insurer to defeat an insured’s other- certainly While it would eliminate the wise valid claim. For tous enforce insur- physical possibility of to hold fraud physical er’s impact prerequi- contractual 691; 1977) 369 A.2d O’Hanlon Pennsylvania: Webb v. United Services Auto. v. Hartford Acc. & Indem. Co. (1974) 508, Pa.Super. Assn. 227 377; (D.C.Del.1977) F.Supp. 439 737; 323 A.2d Virginia: (1962) Doe Progressive v. Brown Florida: Brown v. 203 Va. Mutual 508, 159; Company 125 (Fla.1971) S.E.2d Insurance 429; 249 So.2d Washington: Hartford Accident and Indem- nity (1974) Co. v. Novak 83 Hawaii: DeMello v. First Insurance 576, Wash.2d 520 P.2d 1368. Company (1974) of Haw. Ltd. 304; 55 Haw. 523 P.2d Co., Higgins Mutual Insurance v. Nationwide Hampshire: Stuyvesant Soule v. New Insurance Ala.App. 291 50 282 So.2d affirmed (N.H.1976) Company 364 A.2d 301; Progressive v. So.2d Brown Ala. 883; Co., Fla., supra; Barnes v. Powell Mut. Ins. 377; (1971) 275 N.E.2d Indiana 49 Ill.2d Jersey: Heymann (1973) New v. Conklin (1970) Ind. v. Noble N.J.Super. 227, 820; Insurance 305 A.2d 419; App. Doe N.E.2d Sullivan v. Commercial Union Assur. Com- (1972) panies Kaplan (1977) 159 Mont. 495 P.2d v. 152 N.J. 957; Super. 377 A.2d Guaranty v. Hawaiian Insurance 6. Palisbo Montoya Dairyland Insur- New Mexico: 1350; Co., (Haw. 1976) 547 P.2d Forrester Ltd. Company (D.C.N.M.1975) Co., 213 Mutual Automobile Ins. v. State Farm 1337; F.Supp. 173; v. MFA Mutual P.2d Brake Kan. 1975) Company (Mo.App. 525 S.W.2d Biggs Oklahoma: v. State Farm Mut. Auto. Okl., Emery Co. (1977) Auto. Ins. v. State Farm Mut. Co. 569 P.2d 239 N.W.2d 798. 195 Neb. effect, would, to our prop- driver, amount opportunity site fied but this cannot arbitrary just barricade erected up of an denied ping because there was no ‘im- damages pact’ claims for re- with all the offending Biggs to eliminate car. it car sulting accidents. Since State Farm from one Mut. Auto. Ins. Okl., that car accidents can be P.2d is clear one 433-434. negligent a by operation of caused The contention the physical that contact (as here) any ‘uninsured’ second requirement prevents fraudulent claims ap- prerequisite of con- contractual pears to be of We dubious merit. have not between automobiles undermines tact any signs found of “phantom flood statutory purposes of HRS § 431-448. vehicle” rejecting claims in states Supreme Court: words of the Florida In requirement, legislatures nor have the require- argument necessary those it states found to enact a reasonable is contact is ment to their unin- for only reason perceive fallacious. sured motorist statutes. We no the accident prove that deprive is to injured sound reason to insured say may recompense as a claimant actually did occur for a prevent valid claim to of fact question to be This is it did. the “flood of fraudulent which claims” has judge if jury, or not determined materialized in other states. made. If the trial jury demand The defendant’? contention that the term the burden of party can sustain injured *5 presumes “hit”7 a is ade- occur, he accident did that an proof explained quately by Justice Griffith of the regardless of to recover be entitled should Hampshire Supreme New Court in v. Soule physical contact. If actuality of the Stuyvesant (1976 N.H.) Insurance Company they twenty will swear saw the witnesses 364 A.2d 884-885: testimony their should happen, accident urges The defendant to adopt us an worthless, it would be as not be deemed interpretation of the that statute ascribes review. the decision here phrase ‘hit-and-run’ an intention to Progressive v. Mutual Insurance Brown required statutory limit coverage to acci Fla., 249 1971 So.2d Company, involving physical dents contact with ‘hit- Supreme Oklahoma and the Court: and-run’ automobiles. The defendant purpose of our uninsured mo- Since points out that is synony word ‘hit’ pro- to afford the same statute is torist with physical mous contact and therefore injured by. person to a an unin- tection a ‘hit-and-run’ vehicle must refer to a he have as would had if sured motorist that has had contact with negligent motorist had carried liabili- Ferega the insured. v. Farm State Mut. insurance, purpose it defeat the ty would Ins., Auto. 58 Ill.2d 317 N.E.2d 550 statute to allow insurance con- of the (1974); Prosk v. Allstate Ins. 82 Ill. require impact to before tracts App.2d 226 N.E.2d 498 and to their insured. Ad- would extended Guaranty Co., v. Hendricks 5 N.C.App. mittedly, will be proof the burden of 181,167 (1969), S.E.2d 876 which are cited defendant, upon the insured to show that the acci- by accepted approach this by dent was fact caused unidenti- and held that did not Although (as “hit” used in “hit and run vehi was gave satisfied where driver a fictitious cle”) given interpretation Has been a strict name, or incorrect identification Powell v. Hen courts, not, g., don, some injured party “run” has La.App., e. where the hospi 308 So.2d and where police personnel fails secure the other motor tal and failed to obtain the identity, driver, ist’s v. identity Riemenschneider Motor Veh. Jones v. Unsatisfied Corp., Acc. Indem. 47 Misc.2d Judgment Board, 262 N.Y. and Claims Fund 261 Md. 950; McKay M.V.A.I.C., S.2d 56 Misc.2d 273 A.2d 418. 290 N.Y.S.2d “hit and run vehicle”

31 cover eontact.’ In Barfield v. Insurance Com- compulsory with conflict (1968) Tenn.App. North America interpreta pany of adopt this cannot age. We that, it the court held that a if S.W.2d the outset tion, note at “physical in contact” was satis- correct, defendant the definition were when the rear wheels of an superfluous. fied unidenti- would be its serted in propelled through fied vehicle a rock a phrase interpreting fallacy in causing inju- claimant’s windshield a severe ‘hit’ meaning of the word literal from the ry.9 the com ignores that it in the fact lies meaning of the entire accepted monly The term “hit-and-run” is a base jurisdictions, majority of ‘In a phrase. which was used to colloquialism ball de imposing enacted have been statutes violations of the motor vehicle code scribe or in operating upon an individual duty that a driver involved in an in an vehicle involved a motor control stop, must render aid and leave his accident injury prop causing personal accident required by as SDCL 32-34-3 identification infor certain stop, give damage, to erty Although the term “hit-and- to 32-34-9. who to those mation, render aid and to body in the of those run” is not used stat injured. have been are] [famil [These utes, consistently compilers used it statutes ‘hit-and-run as iarly known this court has referred captions, in the 497, 500 Annot., A.L.R.3d .’ . . . (see to them as “hit-and-run” statutes State Motor Vehicles (1969); 61A C.J.S. Minkel, S.D., (1975)) 230 N.W.2d 233 even Automobiles 674(1) (1970); 7 Am.Jur.2d § statutory requirement there is no though (1963). ‘The Traffic Highway § contact, only that the automobile . term “hit-and-run” use of the accident.”11 It appears be “involved in an involved in an with a car synonymous legislature’s intention in it was damages where the driv causing accident the term “hit-and-run” in 58- using SDCL Acci Hartford er flees from the scene.’ any motorists involved in 11-9 to refer to Novak, Wash.2d dent v. comply an accident who failed to with (1974). P.2d 32-34-9, through 32-34-3 without *6 provision We also note that physical contact. requirement of contact must be requires judgment is reversed. with the insured or person of the with the However, occupying. the insured is JJ., MORGAN, concur. WOLLMAN “physical con- upholding courts in states DUNN, J., TICE, Sr., C. Retired Cir- coverage have found tact” Judge, cuit dissent. insured or was none with the where there Sr., TICE, Judge, sitting Retired Circuit him, but with occupied the automobile PORTER, J., third-car, disqualified. for the so-called “indirect guage. See, Smith v. American Insurance Great g., Farm Mutual Automobile 8. e. State 213; Carlson, Ga.App. Company, 202 S.E.2d 310 N.Y.S.2d v. 62 Misc.2d Co. Insurance Com Louthian v. State Farm Mutual N.Y.2d 324 N.Y.S.2d N.E.2d rev. 29 240; 1973) Springer (4th pany v. 493 F.2d Cir. 528. Co., (La.App. Employees Ins. Government Inc. 36; 1975) Ray DeMaggio (La.App. v. 311 So.2d Dictionary New International 10. See Webster’s 251; 1975) 313 So.2d Latham v. Mountain (2nd 1934) p. courts ed. 1183. Ohio Casualty (Tex.Civ.App.1972) Mutual States “hit- to the unidentified motorist as referred and-skip” 655; Farm Mutual Automobile S.W.2d State (1968) State v. Kirchner drivers. See Cir., (1967) Spinoia v. 5th Insurance Co. 15 Ohio Misc. 236 N.E.2d 236. 873; F.2d Lord v. Auto-Owners (1970) Mich.App. N.W.2d 11. Similar “hit-and-run” statutes have been contact, require physical Peo construed not to reversed, ple (1968) Cal.App.2d v. subsequently Bammes Although ice and (1974) Cal.Rptr. falling 17 Or. truck which State Petersen from an unidentified snow causing App. serious insured’s windshield 522 P.2d Baker Fletcher struck the cuts, satisfy was held to 191 Misc. 79 N.Y.S.2d 580. statutory lan- New York’s which the DUNN, (dissenting). occupying automobile insured is Justice Chief of . at the time the accident . . company clarified what The insurance (Emphasis added.) ambiguity in have been an may may or not Appellant’s chief contention is that meaning of “hit and the statute as “physical provision contact” policies physical contact in its by requiring run” is in contravention of South Dakota liability. There is accepting contract before public uninsured motorist law and the poli- forbidding the com- nothing in the statute above, cy behind such law. As noted how- coverage. limit its pany to so ever, clearly 58-11-9 refers SDCL to “hit- any and-run” not “cause-and-run” or other Judge TICE. in the dissent join I phrase. ques- The statute leaves no TICE, (dissenting). Judge Circuit may recovery tion that there under the majority from the dissent respectfully I provisions uninsured motorist of an insur- opinion. if there is a “hit-and-run” vehi- cle involved. When the insurance contract urged majority and the Appellant has is clear and reasonable and does not conflict the term “hit- accepted that this court has other, any with this statute or there is no meaning, such as has some other and-run” judicial Rather, room for construction. “cause-and-run”, and does NOT ordinary rules of contract and of forced, therefore, am physical contact. I apply. construction give must We must this decision. dissent from plain meaning and definite to the contract 58-11-9 deals with interpolate terms or superimpose as a of an bodily injury or death result provision and limitations which are not con- vehi- involving an uninsured motor accident tained therein. If the terms we are con- cle, including a hit-and-run vehicle. Under sidering ambiguous, here were unclear or the insured has a CHOICE of this statute uncertain, then we would have to construe the “uninsured mo- accepting rejecting them in the manner most favorable to the in the insurance contract. provision torist” insured, but such is not case before us. type protec- this purchasing The insured “physical The words “hit-and-run” and con- just what he bar- is entitled to receive tion only tact” are not words of common and nor less. This gained nothing more everyday meaning, but are contract terms for— in one form or uninsured motorist statute clear, in unambiguous stated coherent and the statute books another has English. been.on Amidzich v. Charter Oak Fire In- 1966 and was last Dakota since South surance 44 Wis.2d 170 N.W.2d 813 legislature If the be- amended in 1975. (1969). necessary that it was anticipated

lieved or Like insurance contracts un- *7 require- contact as physical to exclude virtually der identical statutes been vehicles to be covered ment for unidentified jurisdictions pointed in other as out upheld statute, they under the uninsured motorist majority’s opinion. in footnote 3 of the In to amend the ample opportunity have had Co., Allstate Ins. Ill.App.2d Prosk v. fit to do so. This is law and have seen (1967), example, the 226 N.E.2d 498 despite true the fact that insurance con- policy language court concluded provisions similar to that in the in- tract compatible and the statutes were and the long stant case have been utilized. This is a statutory language unambigu- so clear and legislature matter for the and not a matter legislative ous that intent could be as- legislate. for this court to without resort to other certained aids for construction. pertinent sections of insurance herein state that: “A policies concerned The Nebraska Court in Grace v. State . . means a Co., hit-and-run Farm Mutual Automobile 197 Neb. bodily highway injury vehicle which causes (1976), 246 N.W.2d 874 held that it was arising to an insured out of contact require physical reasonable to contact based with an premise requirement of such vehicle with the insured or on the that such a upon the insurer. Courts fraud precludes prevention agree that

universally justifiable legis- permissible is a

fraud only be said that a purpose. It need

lative attempts by requiring claims fraudulent

prevent tangible proof of a collision

the claimant require- vehicle. That

with a hit-and-run limits the risk of insurers

ment defines and of the liberal aims of the

so that fulfillment with the economic incompatible is not

law coverage. Ely v.

realities of insurance Automobile Insurance Farm Mutual

State Ind.App. 268 N.E.2d Prosk,

(1971); supra. in an automobile insur-

A that there be contact of with the

a hit-and-run vehicle insured vehi- precedent to the assertion

cle as condition a claim under the hit-and-run clause of provision

the uninsured motorist is valid It is not a limitation or

and reasonable.

restriction on the insurance re- nor is it in

quired by SDCL 58-11-9 conflict public policy

with the beneficial of that term “hit-and-run”

statute. The means ex- says what it and cannot be

actly translated

into “cause-and-run” where clear

and contract terms are involved and

physical contact.

I would affirm the trial court.

I am authorized to state that Chief Jus- joins in

tice DUNN this dissent. Dakota,

STATE of South Plaintiff Respondent, *8 GIULIANO,

Carmine Defendant Appellant.

No. 12129.

Supreme Court of Dakota. South

Sept.